# Dectmber, 11. 906 SUPREME COURT REPORTS [1963] SUPP. POORAN CHAND v. MOTILAL & OTHERS

- **Citation:** [1963] Supp. 2 S.C.R. 906
- **Court:** Supreme Court of India
- **Decided:** 1961-07-18
- **Case number:** Civil Regular Second Appeal No. 90of1960
- **Bench:** S. J. Imam, J. L. Kapur, K. Subba Rao, J. R. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dectmber-11-906-supreme-court-reports-1963-supp-pooran-chand-v-motilal-others-2863
- **Pages:** 9

## Headnote

Rent Control-Revision-High Court, powers of-Illegal
subletting-If confined to first sub-letting-Delhi and Ajmer
Rent Control Act, 1952 (38 of 1952), 88. 13 (1) (b), 35.
The landlords executed a lease of a residential premist:s
in favour of the tenant for one year. More than a year afterwards, the landlords gave the tenant a notice to quit and filed
a suit for his eviction inter alia on the ground that he had sublet the premises without their consent.
The tenant resisted
the suit on the ground• that the notice to quit was illegal
and that there was no illegal sub-letting as contemplated
by s. 13 (I) (b) of the Delhi and Ajmer Rent Control
Act, 1952, as he had merely inducted a new sub-tenant
in place of an old one.
The trial Court decreed the suit
but on appeal the Civil Judge dismissed it on the ground
that the notice to quit was invalid. The landlords filed a second
appeal before the High Court and the High Court allowed the
"ame holding that after the expiry of the lease by effiux of time
the tenant was a statutory tenant and no notice to quite was
necessary. The tenant contended that no second appeal lay to
the High Court and it could not have interfered with the decree
of the Civil Judge in its powers of revision under s. 35 of the
Act and that there was no illegal sub-letting.
Held, that even if a second appeal did not lie, the High
Court would have been justified in reversing the decree of the
Civil Judge in exercise of its powers of revision under s. 35 of
the Act. The power of the High Court under s. 35 was wider
than that under s. 115, Code of Civil Procedure, though it
could not be equated to that of its jurisdiction in an appeal. It
was neither possible nor advisable to define with precision the
scope and ambit of s. 35 but it should be left to the High
Court to consider in each case whether the impugned judgment
was according to law or not.
In the present case, since the
tenancy had expired by efflux of time, a notice to quit under
s. 106, Transfer of Property Act was not necessary but the Civil
Judge refused to pass a decree for eviction on a wrong legal
-
• --
2 S.C.R.
SUPREME COURT REPORTS
907
basis that such notice was necessary. The decree of the Civil
Judge was not "according to law" and the High Court was
justified in 'etting aside.
H ari Shankar v. Rao Girdliari Lal Chowdhury, [ 1962]
Supp. IS. C.R. 933 and Bell & Co. Ltd. v. Waman H•mraj,
(1938) 40 Born. L. R. 125, referred to.
Held, further, that the tenant had sub-let the premises
within the meaning of s. )3 (I) (b) (i} of the Act.
This sec·
tion provides for eviction if a tenant has sub .. let, assigned or
otherwise parted with possession of the whole or any part of the
premises without the consent of the landlord in writing.
It
was not confined to the first sub-letting and it covered the case
where there was already a sub-tenant and a new sub-tenant
was inducted when the previous one left.
CIVIL
APPELLATE
JURISDICTION :
Civil
Appeal No. 624/1962.
Appeal by special leave from the judgment
and decree dated July 18, 1961, of the Rajasthan
High Court in Civil Regular Second Appeal No.
90of1960.
G. C. Mathur, for the appellant.
B. D. Sharma, for the respondents.
1962. December 11. The Judgment of the
Court was delivered by
1962
Pooran Chand
v.
Motil<I
8UBBA RAO, J.-This appeal by special leave is
Sub.ha a.., J.
directed against the judgment and decree of the High·
Court of Judicature for Rajasthan at Jodhpur set·
ting aside those of the Senior Civil Judge, Ajmer,
and restoring those of the Subordinate Judge, First
Class, Ajmer, decreeing the suit for eviction from the
suit premises filed by the respondents against the
appellant.
The facts may be briefly stated. The building
situate at No. 41 Purani Mandi, Ajmer, consists of a
large number of rooms, and the respondents are its
owners.
On October 13, 1935, the said building
196Z
Poorsn C/""'4
••
.ft.Iotilal
Subba R .. , J.
908 SUPREME COURT REPORTS [1963] SUPP.
was taken on lease by the appellant's father fo

## Text

1962
Dectmber, 11.
906 SUPREME COURT REPORTS [1963] SUPP.
POORAN CHAND
v.
MOTILAL & OTHERS
(S. J. IMAM, J. L. KAPUR, K. SUBBA RAO
and J. R. MuDHOLKAR, JJ.)
Rent Control-Revision-High Court, powers of-Illegal
subletting-If confined to first sub-letting-Delhi and Ajmer
Rent Control Act, 1952 (38 of 1952), 88. 13 (1) (b), 35.
The landlords executed a lease of a residential premist:s
in favour of the tenant for one year. More than a year afterwards, the landlords gave the tenant a notice to quit and filed
a suit for his eviction inter alia on the ground that he had sublet the premises without their consent.
The tenant resisted
the suit on the ground• that the notice to quit was illegal
and that there was no illegal sub-letting as contemplated
by s. 13 (I) (b) of the Delhi and Ajmer Rent Control
Act, 1952, as he had merely inducted a new sub-tenant
in place of an old one.
The trial Court decreed the suit
but on appeal the Civil Judge dismissed it on the ground
that the notice to quit was invalid. The landlords filed a second
appeal before the High Court and the High Court allowed the
"ame holding that after the expiry of the lease by effiux of time
the tenant was a statutory tenant and no notice to quite was
necessary. The tenant contended that no second appeal lay to
the High Court and it could not have interfered with the decree
of the Civil Judge in its powers of revision under s. 35 of the
Act and that there was no illegal sub-letting.
Held, that even if a second appeal did not lie, the High
Court would have been justified in reversing the decree of the
Civil Judge in exercise of its powers of revision under s. 35 of
the Act. The power of the High Court under s. 35 was wider
than that under s. 115, Code of Civil Procedure, though it
could not be equated to that of its jurisdiction in an appeal. It
was neither possible nor advisable to define with precision the
scope and ambit of s. 35 but it should be left to the High
Court to consider in each case whether the impugned judgment
was according to law or not.
In the present case, since the
tenancy had expired by efflux of time, a notice to quit under
s. 106, Transfer of Property Act was not necessary but the Civil
Judge refused to pass a decree for eviction on a wrong legal
-
• --
2 S.C.R.
SUPREME COURT REPORTS
907
basis that such notice was necessary. The decree of the Civil
Judge was not "according to law" and the High Court was
justified in 'etting aside.
H ari Shankar v. Rao Girdliari Lal Chowdhury, [ 1962]
Supp. IS. C.R. 933 and Bell & Co. Ltd. v. Waman H•mraj,
(1938) 40 Born. L. R. 125, referred to.
Held, further, that the tenant had sub-let the premises
within the meaning of s. )3 (I) (b) (i} of the Act.
This sec·
tion provides for eviction if a tenant has sub .. let, assigned or
otherwise parted with possession of the whole or any part of the
premises without the consent of the landlord in writing.
It
was not confined to the first sub-letting and it covered the case
where there was already a sub-tenant and a new sub-tenant
was inducted when the previous one left.
CIVIL
APPELLATE
JURISDICTION :
Civil
Appeal No. 624/1962.
Appeal by special leave from the judgment
and decree dated July 18, 1961, of the Rajasthan
High Court in Civil Regular Second Appeal No.
90of1960.
G. C. Mathur, for the appellant.
B. D. Sharma, for the respondents.
1962. December 11. The Judgment of the
Court was delivered by
1962
Pooran Chand
v.
Motil<I
8UBBA RAO, J.-This appeal by special leave is
Sub.ha a.., J.
directed against the judgment and decree of the High·
Court of Judicature for Rajasthan at Jodhpur set·
ting aside those of the Senior Civil Judge, Ajmer,
and restoring those of the Subordinate Judge, First
Class, Ajmer, decreeing the suit for eviction from the
suit premises filed by the respondents against the
appellant.
The facts may be briefly stated. The building
situate at No. 41 Purani Mandi, Ajmer, consists of a
large number of rooms, and the respondents are its
owners.
On October 13, 1935, the said building
196Z
Poorsn C/""'4
••
.ft.Iotilal
Subba R .. , J.
908 SUPREME COURT REPORTS [1963] SUPP.
was taken on lease by the appellant's father for a
period of one year on a rent of Rs. 50/- per month.
On July 10, 1950, the respondents gave a lease of the
said building in favour of the appellant for a period
of one year on a rent of Rs. 65/- per month. On
August 8, IIJ52, a fresh lease was executed in favour
of the appellant on an enhanced rent of Rs. 70/- per
month.~ Under the said lease the tenacy was to commence trom August l, 1952. On June 27, 1954, the
respondents issued a notice to the appellant, through
their Advocates, calling upon him to vacate the premises by midnight of July 31, W54/August l, 1954.
In that notice it was alleged that the appellant was
in arrears of rent and that he had also sublet the
property. In the reply notice the appellant promised
to pay the arrears of rent as early as possible, but stated
that he had all along been subletting portions of the
premises to others, except the portion under his occupation.
As the appellant did not comply with the
terms of the notice, the respondents filed on August
2, 1954, Civil Suit No. 762of1!154 in the Court of
the Subordinate .Judge, First Class, Ajmer, against
the
appellant for
eviction,
for
recovery of
arrears
of
rent and for other
reliefs.
The
plaint
was later on amended. The appellant
contested the suit on various grounds and particularly
on the ground that it was not maintainable. It may
be mentioned that in the written-statement the fact
that the premises were sublet to tenants was not denied. The learned Subordinate Judge decreed the
suit, holding that the notice was valid and that the
appellant was liable to be evicted under s. 13 (l) (b)
of the Delhi and Ajmer Rent Control Act, 1952
( XXXVIII of 1952 ), hereinafter called the Act,
as he had sublet portions of the premises without the
consent in writing of the landlord. On appeal the
Senior Civil Judge, Ajmer, allowed the appeal. He
held that the notice issued to the appellant was short
by 24 hours and that he had no right to sublet the
premises without the written consent of the landlord,
2 S.C.R.
SUPREME COURT REPORTS
909
though there where sub-tenants in the premises when
the appellant took the lease.
On second appeal, the
High Court allowed the appeal and restored the de·
cree of the trial court. The High Court held that
the notice complied with the provisions of s. 106 of
the Transfer of Property Act, 1882, and that, in any
event, as the tenancy expired by mere efflux of time,
no notice was necessary. Hence the present appeal.
Learned counsel for the appellant raised before
us the following four points: (I) No second appeal lay
to the High Court against the decree and judgment
of the Civil Judge; (2) if no second appeal lay against
the decree and judgment of the Civil Judge, the
High Court's power of interference with that judgment was confined only to s. 35 ( 1) of the Act and
that under that section it had no jurisdiction to set
aside the judgment on merits, whether of law or of
fact; (3) the High Court wrongly held that the notice
complied with the provisions of s. 106 of the Transfer
of Property Act, 1882; and (4) the High Court made
out a totally new case in holding ·that the tenancy
had expired by efflux of time.
It is not necessary in this case to express our
opinion on the first question, as we are satisfied that
even if no second appeal lay to the High Court against the judgment and decree of the Ci'vil Judge, the
High Court had ample jurisdiction to interfere in the
circumstances of the case under s. 35 (I) of the Act,
which reads :
"(l) The High Court may, at any time, call
for the record of any case under this Act
for the purpose of satisfying itself that a
decision made therein is according to law
and may pa'IS such order in ~elation thereto as it thinks fit."
Reliance is placed by the learned counsel on a decision or this Court in H·1ri Shankar v. Rao Girdhari
Lal Chowdhury (1) in support of the CQntention that
(JI (1962) Su11p. IS.CR .• ~'
1962
Pooran Chant
v.
Motilal
Subba Rao, J.
1962
Pooran Chand
v.
Motilal
Subbo Rafi, J.
910 SUPREME COURT REPORTS [1963) SUPP.
the jurisdiction of the High Court under s. 35 of the
Act is very limited and does not warrant the High
Court's interference in the circumtances of this case.
The main question in that decision was whether the
plaintiff consented to the subletting of parts of the
demised premises and if so, when and to what effect ?
The trial Judge found that there was no evidence
that the landlord was ever consulted. On appeal,
the District Judge confirmed that finding.
In revision, the High Court considered the evidence over
again and came to a contrary conclusion. In that
context this Court considered the scope of s. 35 of the
Act. Hidayatullah, J., expressing the majority view,
observed:
"The phrase "according to law" refers to the
decision as a whole, and is not to be equated to
errors of law or of fact simpliciter. It refers to
the overall decision, which must be according
to law which it would not be, if there is a
miscarriage of justice due to a mistake of law.
The section is thus framed to confer larger
powers than the power to correct error of jurisdiction to which s. 115 (of the Code of Civil
Procedure) is limited."
Then the learned Judge quoted in extenso the observations of Beaumont, C.J. (as he then was) in Bell &
Co. Ltd. v. Waman Hemraj (1) and recorded his full
concurrence with those observations. By those observations the learned Chief Justice gave certain illustrations and made it clear that they were not exhaustive and concluded thus :
"But, in my opinion. the Court ought not to
•
interfere merely because it thinks that possibly
the Judge who heard the case may have arrived
at a conclusion which the High Court would
not have arrived at."
(1) (1918) 40 Dom. L.R. 125,
2 S.C.R.
SUPREME COURT REPORTS
911
It is clear from the observations of Hidyatullah, J.,
and those of Beaumont, C. J., which the former has
fully extracted, that the power of the High Court
under s; 35 of the Act is wider than that under s. 115
of the Code of Civil Procedure, though it cannot be
equated to that of its jurisdiction in an appeal. It is
neither possible not advisable to define with precision
the scope and ambit of s. 35 of the Act, but it should
be left to the High Court to consider in each case
whether the impugned judgment is according to
law or not, as explained by this Court in the said
decision.
Bearing the view expressed by this Court in
mind we shall proceed to consider whether the High
Court had acted within its jurisdiction. The main
question turns upon the construction of s. 13(1) of
the Act. The material part of the section reads :
"Notwithstanding anything to the contrary contained in any other law or any contract, no
decree or order for the recovery of possession
of any premises shall be passed by any Court
in favour of the landlord against any tenant
(including a tenant whose tenancy is terminated):
Provided that nothing in this sub-section
shall apply to any suit or other proceeding for
such recovery of possession if the Court is
satisfied~
(a) that the tenant has neither paid nor
tendered the whole of the arrears of
rent due within one month of the date
on which a notice of demand for the
arrears of rent has been served on him
by the landlord in the manner provided in section 106 of the Transfer
of Property Act, 1882 (IV of 1882); or
1%2
Pooran Chand
••
Molilal
Suhba Rao, J.
1962
Pooran CMnd
••
Motilol
Subba Rao, J
r
---
912 SUPREME COURT REPORTS[l963]SUPP.
(b) that the tenant without obtaining the
consent of the landlord in writing has,
after the commenc !n'ent of this Act,-
(i) sub-let, assigned or otherwise parted with the possession of, the whole or any part
f th
.
"
o
e premises. . ............. .
Learned counsel for the appellant contends that the
provisions of the said section are an additional protection to a tenant and that they do not enable the
landlord to dispense with a statutory notice before
filing a suit for eviction, and in the present case the
notice given did not comply with the provisions of
s. 106 of the Transfer of Property Act, I 882. It is
not necessary in this appeal to express our opinion
on the validity of this contention, for we arc satisfied
that the term of the tenancy had expired by efflux
of time; and, therefore, no question of statutory
notice would arise. But the learned counsel contends
that this point was not raised either in the plaint or
in the lower courts, but was raised for the first time
before the High Court and that as the question is a
mixed question of fact and law, the High Court went
wrong in allowing it to be raised for the first time
before it. We cannot say that this point was not
raised in the plaint. The suit was filed for eviction,
and the ground for eviction was two-fold, viz., the
rent was not paid and that the appellant had sublet
the premises.
In the plaint it was not stated that
the tanancy was a monthly tenancy; on the other
hand, the respondents alleged in the plaint that the
appellant was their tanant under the lease deed dated
August 8, 1952, and they filed, along with the plaint,
the said lease deed, the terms whereof clearly show
that the term of the lease was for one year. The
appellant admitted those facts.
It is, therefore,
manifest that the appellant never denied that the
term of the lease was not for one year. The High
'
2 S.C.R.
SUPREME COURT REPORTS
913
Court was, therefore, justified in considering the
point, because the validity of the notice depended
upon the term of the tenancy and also because the
question of the term of the tenancy depended solely
on the construction of the lease deed.
On the basis
of the lease deed the High Court held that the term
of the lease is only for one year and it had expired
by effiux of time.
The document says that the house
had been taken on rent for one year by the first party
and ends thus, "if the rent falls into arrears then the
second party shall be jointly and severally entitled
to eject me namely the first party before the expiry
of the term of tenancy and realise the rent due." It
is, therefore, manifest that the lease was for a period
of one year and that it was not a monthly tenancy.
As the term fixed under the deed had expired, the
appellant was not entitled to any statutory notice
under s. 106 of the Transfer of Property Act, 1882.
Even so, it is contended that the appellant had
not sublet the premises within the meaning of s.13(1)
(b)(i) of the Act.
It is said that the sub·section
applies only to a case of sub.tenancy created for the
first time after the lease was taken and does not
cover a case where there was already a sub-tenant
and a new sub-tenant was inducted when the previous
sub-tenant vacated it.
This conclusion is sought to
be drawn from the words "s 1blet, assigned; or otherwise parted With the J'US8C88fon" and it is argued if
possession had already been parted with by way of
sub-lease and what was done was only to substitute
another in the place of the earlier sub-tenant, this
sub-clause is not attracted. There are no merits in
this contention. Section 13(l)(b)(i) clearly says that
if a tenant, without obtaining the consent of the landlord in writing has, after the commencement of this
Act, sub-let, assigned or otherwise parted with the
possession of the whole or any part of the premises,
he is liable to be evicted.
Here, admittedly after
the lease dcrt! of 1952 the appellant has sublet some
1962
Pooran Chmid
v.
Motilal
S11bbn Roo, J,
lff2
Poor1ln Ch1mli
••
M•til•I
Subb• If••, J.
914 SUPREME COURT REPORTS [1963] surP.
of the rooms of the building to others without obtain·
ing the written consent of the landlord. The fact
that there were sub-tenants in the said portions could
not conceivably be of any help to the appellant,
because the new sub.tenants were not holding under
the earlier sub-tenants, but were inductrd by the
appellant, after the earlier
sub-tenancies were
terminated. The appellant, having sub-let part of
the premises without the consent of the landlord in
writing, cannot invoke the protection given to him
under s. 13 of the Act.
In this view, the High Court was certainly
right in setting aside the decree of the Civil Judge,
for the Civil Judge refused to pass an order of eviction on a wrong legal basis that the apprllant was a
monthly tenant, ignoring the express term in the
lease deed itself.
As the decree was not "according
to law", the High Court, in exercise of its jurisdiction under s. 35 of the Act, was certainly within it3
rights to set aside the said decree.
In the rcsul t, the appeal fails and is dismissed
with costs.
Appeal dismissed.