# [1969] 3 S.C.R. 989

- **Citation:** [1969] 3 S.C.R. 989
- **Court:** Supreme Court of India
- **Decided:** 1969-03-12
- **Case number:** Civil Re;ular S2c0nd Appeal No. 487 of 1962
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1969-3-s-c-r-989-4713
- **Pages:** 6

## Headnote

A
GOPPULAL
11.
TllAKUlUI SHRIJI SHRIJI DWARKADHEESHJI & ANR.
March 12, 1969
B
[S. M. SIKRI, R. S. BACIIAWAT AND K. S. HEGDE, IJ.]
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H
I
Rajasthan Premises (Control of Rent & Eviction) Act, (Raj. 17 of
1950). s. 13(1)(e)-Sub·letting before enforcement of the Act-Eject·
ment, if possible-Landlord and tenant-Increase of rent-If imports new
demise-Sub-letting-How established.
The respondent-landlord let out to the appellant four shops aod later
on let out to him two more shops.
The respondent filed a suit alleging
that subsequent to the letting of the shops, by a contract, the rent was
consolidated and increased and that the shops we're sub-let by the appel·
laot, so the appellant be ejected from all the six shops under s. IJ(l)(e)
of the Rajasthan Premises
(Control of Rent and
Eviction)
Act. The
appellant denied the contract and denied the subletting altogether.
The
trial court dismissed the suit, and the first appellate court affirmed the
decree. Both these courts concurrently found that new contract of tenaocy
was not created. it was only an increase of rent, the other terms of the
tenancy remained unaltered, and that the two shops were sub-let but with
the permission. of the landlord. The High Court, in second appeal, reversed the decree of the courts below, and held that there was one integrated tenancy of all the shops, that the four shops were sub-let with the
permission of the landlord, but the later t\VO were sub-let without permission, and that having sub-Jet a .Part of the premises without the permission, the dec!ree for possession of all the shops must be passed.
In
appeal to this Court, the appellant-tenaot contended that (i) the tenancy
of all the six shops were not one integrated; (ii) two shops were not sublet without the permission of the landlord; and (iii) the sub-letting was
before the Jaipllr Rent Control Order, 1947 came into force, which was
repealed and continued by the promulgation of the Rajasthan Premises
(Control of Rent & Eviction) Act, 1950, and therefore ejectment could
not be claimed unde'r s. 13 (I )(e) of the Act.
HELD : The appellant could not be ejected from
four shops, but
ought to be ejected from the two shops.
(i) A mere increase or reduction of rent does not necessarily import
the surrender of the existing lease and the grant of a new tenancy. In the
present case the first two c'ollrts on a review of the entire evidence came
to the conclusion that the increase of rent did not import a new demise.
This finding of fact was binding on the High Court in second appeal and
it erred in holding that there was one integrated tenancy of the six shops.
[991 H-992 BJ
(ii) In the abs"'1ce of any pleading and any i'8ue on the question of
sub-letting, the first two courts were in error in holding that the two shops
we're sub·let with the permission of the landlord. The permission of the
landlord for the sub-letting cannot be established from the mere fact that
the landlord realised rent after the sub-lettina in the absence of proof
that the landlord had then clear knowled1e of the 1ub-le.,e. [992 DJ
The date of the sub-letting of the two lhOJ!! is not mentioned in the
plaint In the aboence of any plelQina and anv iS1ue on this queotion the
990
SUPllEME COURT REPORTS
[1969] 3 S.C.R.
High Court was error in reco'rding the finding that the two shops were
sub-let towards the end of 1947 after the Jaipur Rent Control Order 1947
came into force.
It can only be said that the sub-letting was sometime
:ifter 1945. (992 El
(iii) Section 13 ( l) ( c) of the Act was intended to apply to sub-letting
before the Act came info force.
If the tenant had sub-let the premises
\\'ithout the permission of the landlord either 1'efore or after the coming
into force of the Act, he was not protected from eviction under s. 13 ( l)
( e), and it matters not that he had the right to sub-let the premises under
s. I 08 ( i) cf the Transfor of Property Act.
The present perfect tense,
bv words "has .sub-let" in s. lJ(J)(e) of the Act

## Text

A
GOPPULAL
11.
TllAKUlUI SHRIJI SHRIJI DWARKADHEESHJI & ANR.
March 12, 1969
B
[S. M. SIKRI, R. S. BACIIAWAT AND K. S. HEGDE, IJ.]
c
D
E
G
H
I
Rajasthan Premises (Control of Rent & Eviction) Act, (Raj. 17 of
1950). s. 13(1)(e)-Sub·letting before enforcement of the Act-Eject·
ment, if possible-Landlord and tenant-Increase of rent-If imports new
demise-Sub-letting-How established.
The respondent-landlord let out to the appellant four shops aod later
on let out to him two more shops.
The respondent filed a suit alleging
that subsequent to the letting of the shops, by a contract, the rent was
consolidated and increased and that the shops we're sub-let by the appel·
laot, so the appellant be ejected from all the six shops under s. IJ(l)(e)
of the Rajasthan Premises
(Control of Rent and
Eviction)
Act. The
appellant denied the contract and denied the subletting altogether.
The
trial court dismissed the suit, and the first appellate court affirmed the
decree. Both these courts concurrently found that new contract of tenaocy
was not created. it was only an increase of rent, the other terms of the
tenancy remained unaltered, and that the two shops were sub-let but with
the permission. of the landlord. The High Court, in second appeal, reversed the decree of the courts below, and held that there was one integrated tenancy of all the shops, that the four shops were sub-let with the
permission of the landlord, but the later t\VO were sub-let without permission, and that having sub-Jet a .Part of the premises without the permission, the dec!ree for possession of all the shops must be passed.
In
appeal to this Court, the appellant-tenaot contended that (i) the tenancy
of all the six shops were not one integrated; (ii) two shops were not sublet without the permission of the landlord; and (iii) the sub-letting was
before the Jaipllr Rent Control Order, 1947 came into force, which was
repealed and continued by the promulgation of the Rajasthan Premises
(Control of Rent & Eviction) Act, 1950, and therefore ejectment could
not be claimed unde'r s. 13 (I )(e) of the Act.
HELD : The appellant could not be ejected from
four shops, but
ought to be ejected from the two shops.
(i) A mere increase or reduction of rent does not necessarily import
the surrender of the existing lease and the grant of a new tenancy. In the
present case the first two c'ollrts on a review of the entire evidence came
to the conclusion that the increase of rent did not import a new demise.
This finding of fact was binding on the High Court in second appeal and
it erred in holding that there was one integrated tenancy of the six shops.
[991 H-992 BJ
(ii) In the abs"'1ce of any pleading and any i'8ue on the question of
sub-letting, the first two courts were in error in holding that the two shops
we're sub·let with the permission of the landlord. The permission of the
landlord for the sub-letting cannot be established from the mere fact that
the landlord realised rent after the sub-lettina in the absence of proof
that the landlord had then clear knowled1e of the 1ub-le.,e. [992 DJ
The date of the sub-letting of the two lhOJ!! is not mentioned in the
plaint In the aboence of any plelQina and anv iS1ue on this queotion the
990
SUPllEME COURT REPORTS
[1969] 3 S.C.R.
High Court was error in reco'rding the finding that the two shops were
sub-let towards the end of 1947 after the Jaipur Rent Control Order 1947
came into force.
It can only be said that the sub-letting was sometime
:ifter 1945. (992 El
(iii) Section 13 ( l) ( c) of the Act was intended to apply to sub-letting
before the Act came info force.
If the tenant had sub-let the premises
\\'ithout the permission of the landlord either 1'efore or after the coming
into force of the Act, he was not protected from eviction under s. 13 ( l)
( e), and it matters not that he had the right to sub-let the premises under
s. I 08 ( i) cf the Transfor of Property Act.
The present perfect tense,
bv words "has .sub-let" in s. lJ(J)(e) of the Act contemplates J completed event connected in some \Vay with the pi'esent time.
The \vords
t:ike \vithin their sweep any sub-letting which was made in the part and
hr1.r;; continued up t0 the present time.
It did not matter that the subletting \Vas either before or after the Act came into force.
Further
.'OS. 26 and 27(1) of the Act contemplated that grounds of eviction mentioned ins. 13 m:i.y have arisen before the Act came into force. [993 D-994 A]
CIVIL APPELLATE JURISDICTION:
Civil Appeal No, 53 of
1969.
Appeal by special leave from the judgment and decree dated
November 1, 1968 of the Rajasthan High Court in Civil Re;ular
S2c0nd Appeal No. 487 of 1962.
C. B. Aganmla, Rames/11rnr Nath and Mahinder Narain, for
111e appellant.
B. R. L. Iyengar. S. K. Mehta and K. L. Mehta, for the respondents.
The Judgment of. the Court was delivered by
P.~~h,,wat, 1. This appeal arises out of a suit for ejectment
by a landlord a!!ainst a .tenant. The defendant is the tenant of
six shops belonging to Thakurji Shri Shri Dwarkadheeshji installed in the temple at Chaura Raasta, Jaipur.
Devendra Prasad
is the adhikari or manager of the temple.
He gave a notice to
the. defendant to quit the shop on August 1. 1957. On February '.?8. 1958, the. deity and Devendra Prasad filed a suit against
the defend~nt claiming recovery of possession of the six shops
and Rs. 1.0061- on account of arrears of rent.
The suit was
~ovcrned bv the Rajasthan Premises (Control of Rent and Eviction) Act. 1950 (Act No. XVII of 1950). The plaintiffs asked
for ejectment of the defendant on the ground that he had suhlet the six shops.
The other grounds of ejectment were not
e'tablished. and it is not necessary to mention them. The courts
b~low concurrently found that Devendra Prasad as the adhikari
of the temple was entitled to give the notice to quit and to maintaiJl the suit.
The trial court held that ( 1) all the six shops were sub-let
hv the defendant; (2) the sub-letting wa~ with the penni!!illn of
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uOPl'ULAL >'. DWAlt1'AlJHl!llSHJI (B•c/;QIV"l J.)
991
the iaadlord and (3) the notice to quit was waive<l by acceplanc~
of rent subsequently accrued due.
Accordingly, tht: trial cou.-1
dt>nJ.issed the suit so far as it claimed ejectment and passed a
decree for Rs. 1,006 on account arrears of rent. The plaintiff filed
an .ippeal against the decree.
The District Judge, Jaipur City,
dismissed the appeal. The plaintiffs filed a second appcai agai,n.st
.the dec<ce. The H.igh Court hdd that ( 1) there was on integra:ed
tenancy of ali the six shops; (2J four shops were sub-let with
the permission of the landlord; ( 3) two shops were sub-:et w1lh·
out the permission of the landlord tuwards t!1e end of 19.+1; (4)
the tenant having sub-kt a pan of the premises without the pe: -
mission of the landlord the ground of eviction under claii>e ( e)
of s. J 3 ( 1) was made out and the landlord was entitled to
a
decree for possession ol all the six shops and (5) th~rc was no
waiver of the notice to quit. Accordingly, the High Court allowed the appeal and passed a decree for eviction of the deiendant
from the six shops. The present appeal has been field
by the
defendant after obtaining special leave.
Counsel for the appellant conceded that there was no waiver
of the notice to quit by acceptance of rent or otherwise.
The
points
arising for determination in this appeal are : ( 1) was
there on~ integrated temancy of all the six shops ? ( 2) were the
two sub-let without the permission of the landlord towacds the
end at 1947? and (3) is the sub-letting a ground of ejectment
under clause ( e) of s. 13 ( 1) of the Rent Act ?
As to the first question, we !ind that four shops were let to
the defendant in 1944 and the other two shops on the northern
side of the staircase of the temple were let to him in 1945. ·The
rent of the four shops was Rs. 150.'- ·per month.
The rent of
the other two shops was Rs. 65, - per month.
In paragraph 5
of the plaint it was pleaded that in 1953 the defendant aoreed
to pay a consolidated rent of Rs. 251 /8/- per month for all the
>ix shops "!ld to vacate them by July 3 l, 1957.
In paragraph
5 of the wntten statement the defendant denied this contract and
alleged that in 1953 there was only an enhancement of rent. The
first two courts found that in l 953 there was no new contract
of tenancy, that there was only an increase of rent and that the
other terms and conditions of the tenancy remained
unaltered.
This finding was not vitiated by any error of law.
A mere increase or reduction of rent does
not necessarily
import the surrender of the existing lea!e and the grant of a new
tenancy.
As stated in Hill and Redman's Law of Landlord and
Tenant, 14th ed., art. 385, p. 493 :-
"But a surrender does
not follow from a mere
agreement m~de during the tenancy fur the reduction
992
SWl'lllld• COIJJ.T Ul'OJ.Tli
[1969] 3 S.C.R.
or increase of rent, unless there is some special reason
to inlet a new tenancy, where for instance, the parties
· make the change in tne ren1 in the belief that the old
tenancy is at an end."
ln the present case the first two 1;ourts on a review of the entire
evidence came to the conclusion that the increase of rent did not
import a new demise.
This finding of fact was binaing on tbe
H1~n Court in second appeal. The High Court was m error Ill
holding that there was one integrated tenancy of the six shops.
As to the second question the defendant denied that he sublet the two shops. The courts below concurrently found that this
derual was laJse and that he sub-let the two shops to his brotherin-law Ram Gopal.
There was no pleading nor any issue that
the sub-1etting of the two shops was made with the permission
of the landlord. It was not the case a.f the defendant at any stage
of the tnal that he had obtained the permission of the landlord
for sub-letting the two shops. In the aosence of any p1eadmg and
any issue on his joint the first two courts were in error in holding that the two shops were sub-let with the permission of the
landlord.
The permission of the landlord for the sub-letting is
not established from the mere fact that the landlord realised rent
after the sub-Jetting in the absence of proof hat the landlord had
then clear lmowleage of the sub-lease:
The date of the sub-letting of the two shops is not mentioned
in the. plaint. In the absence of any pleading and any issue on
his question the High Court was in error in recording the finding
that the two shops were sub.,Jet towards the end of 194 7 after the
Jaipur Rent Control Order 1947 came into force.
We can only
say that the sub-Jetting was sometime after 1945.
As to the third question : section 13 ( 1) of the Rajasthan
Premises (Control of Rent & Eviction) Act, 1950 provides :-
"Notwithstanding anythi,ng contained in any law or
contract, no Court shall pass any decree, or make any
order, in favour of a landlord, whether in execution of
a decree or otherwise, evicting the tenant so long as
he is ready and willing to pay rent therefor to the full
extent allowable by this Act, unless it is satisfied-"
The sub-section then sets out several grounds of ejectment under
twelve main heads,
Clause ( e)
mentions the following
ground:-
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"that the tenant has assigned, sub-let or otherwise
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parted with the possession of, the whole or any part of
th• prtmiHi without th• p1rmiaaio12 of th• landlord."
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GOPPlJLAL V. DWAllKA!lHillSH.H (ll*KMWWI, J.)
9ii3
The appellant's contention is that sub-letting before the Act came
into force is not within the purview of clause ( e). The High
Court held that the two shops were sub-let after October 15,
1947 when the Jaipur Rent Control Order, 1947 came into force,
that the sub-letting was a ground oi ejectmtmt under paragraph
8(l)(b)(ii) of thftt Order and that the tenant's liability for
eviction on this ground continued after the promulgation of the
Rajasthan Premises (Control of Rent and Eviction) Act, 1950.
With regard to this line of reason:ing it is sufficient to say that
the plaintiffs have not established that the sub-letting was after
October 15, 1947. The case must be decided on the footing that
on the date of the sub-letting, no Rent Control legislation was in
force.
The question whether a sub-letting before the coming into
force of the Act is within the purview of clause ( e) of s. 13 ( 1)
depends upon the construction of that clause. The relevant
words are "has sub-let". The present perfect tense contemplates
a completed event connected in some way with the present time.
The words take within their sweep any sub-letting which was
made in the past and has continued up to the present time. It
does not matter that the. sub-letting was either before or after the
Act came into force. AH such sub-lettings are within the purview
of clause (e).
Sections 26 and 27 ( 1) of the Act throw considerable light on
the construction of s. 13 ( 1). They are as follows :-
"26. No decree fodhe eviction of a tenant from any
premises in areas to which this Act extends for the
time being, passed before the date of commencement
of this Act shall in so far as it relates to the eviction
of such tenant be executed against him, as long as this
Act, remains in force therein, except on any oi the
growids mentioned in s. 13 and under the circumstances specified in this Act.
27 (1) In all suits for eviction of tenants from
any premises in areas to which this Act has been extended under section 2, pending on the date specified
in tlie notification under that section, no decree for
eviction shall be passed except on one or more of the
grounds mentioned in section 13 and u:nder the circumstances specified in this Act."
Section 26 bars the execution of a decree for eviction passed before the commencement of the Act except on any of the QTOunds
mentioned in s. 13 and under the circumstances specified in the
Act. Likewise, s. 27 ( 1) bars the passing of a decree for eviction
in a pending suit except on one or more of the groundi undtr
iii"
SUllll>t& WU.ll.T ll.IPO.ll.Tii
[1116~] 3 S.C.R.
s. J 3 and under the . ir~umstances specified in the Act. Secti?ns
26 and 27 ( l) clearly contemplate that the grounds of eviction
mentioned in s. 13 may have arisen before the Act came mto
force.
The argument that section 13 ( l )( e) takes away vested rights
and should not be give.n a retrospective effect is based on .faUa·
cious assumptions. Apart from th~ Rent Act th.e Jandlo~d IS e~
titled to eject the tenant on the expiry of the period mentioned .m
the notice to quit. Section 13 ( l) protects the tenant from eviction except in certain specified cases. If one of the grounds of
ejectment is made out the tenant does not qualify for protection
from eviction. We find no reason for pfesuming that s. 13 (1 )( e)
is not intended to apply to sub-lettings before the Act came into
force. If the "tenant has sub-Jet" the premises without the permission of tlie landlord either before or after the coming into force
of the Act, he is not protected from eviction under s. 13 ( l )( c),
and it matters not that he had the right to sub-let the premises
under s. 108 (j) of the Transfer of Property Act.
The plaintiffs have thus established the ground of eviction
under s. 13 ( 1 )( e) with regard to the two shops on ~ northern
side of the staircase of the temple. With regard to the four other
shops the courts below concurrently found that they were sublet with the permission of the landlord. In our opinion, the
plaintiffs are entitled to a decree for ejectment of the defendant
from the two shops and the claim for eviction from the other
four shops should be dismissed.
In the result, the appeal is allowed in part. The decree
passed by the High Court for eviction of the defendant from the
four shops is set aside and the suit in so far as it claims eviction
from the four shops is dismissed. The decree passed by the High
Court for evict!on of the defe.ndant from the other two shops on
the northern side of the .staircase of the temple mentioned in
par_agraph 4 of the. plaint is affirmed. Parties will pay and bear
their own costs throughout, in this Court and in all the courts
below.
The defendant will have one month's time to vacate the
two shops.
Y.P.
Appeal allowed in part.
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