# NAND KISHORE v. RAM KISHAN &: ANR

- **Citation:** [1967] 1 S.C.R. 167
- **Court:** Supreme Court of India
- **Decided:** 1966-08-25
- **Case number:** CIVIL' APPELLATE JURISDICTION: Civil Appeal No. 467 of 1966
- **Bench:** K. Subba Rao, J. M. Shelat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nand-kishore-v-ram-kishan-anr-3808
- **Pages:** 7

## Headnote

Delhi Rent Control Act (S9 of 1958), ss. 17(3), 18(2) and 50, and
Delhi and Ajmer Rent Control Act (38 of 1952), s. 20-Tenancy determined before commencement of the Act of 1958-Sult by sul>-tenant claiming to l>e statutury tenant-If malntainal>le.
The landlord of the premises in dispute, obtained a decree for eject.
ment against bis tenant before the commencement of the Delhi Rent
Control Act, 1958.
The sub-tenant was not a party to that suit and
the 1ub-tenancy was not determined by that decree. In 1962, the 1ubteoa.nt filed a suit against the landlord claiming to have become a statutory tenant of the premises. The landlord contended that under s. 50
of the Act, no civil court shall entertain any suit in respect of a matter
which the C&.troller is empowered by or under the Act to decide, and
that as s. 17 ( 3) of the Act empowered the Controller to decide a dispute
in regard to the question whether a person was a sub-tenant or not, the ·
suit was not maintainable.
HELD : ·Section 50 was not a bar to the suit.
. The provision of the Act applicable to a case where the interest of a
l>mallt had been determined before the commencement of the Act, but
the interest of the sub-tenant was allowed to subsist is s. 18(2). Under
thiS sub-section the sub-tenant shall, with effect from the date of the
commencement of the Act, be deemed to have become, by a statutory
fiction, a tenant under the landlord. There ls no provision In the Act
under which a dispute in respect of 1uch a sul>-tenancy could be decided
by tho Controller. Any dispute raiSed by such a sub-tenant does not [all
tinders. 17(3). for, s. 17(3) applies only to a case where a dispute
arises during the subsistence of the main tenancy after the Act came
into force, ancl where the. dispute was raised within two months of the
issue of the notice of sub-letting, by the tenant or sub-tenant. [l 71 A-CJ
Mohd. Mapwod v. Tikam Das, (1966] 1 S.C.R .. 128, explained.
Moreover, under ·s. 20 of the Delhi and Ajmer Rent Control Act.
1952, on the eviction of the tenant, the sub-tenant would be deemed
to have become a tenant of the landlord. There is no provision in th•
Deihl Rent Control Act, 1958, which took away that vested right or
empowered the Controller to decide a dispute raised in regard to it.
Section 50, therefore could not have any bearing on the maintainability
of the suit. (171 E-0]
·
CIVIL' APPELLATE JURISDICTION: Civil Appeal No. 467 of 1966.
Appeal by special leave from the judgment and decree dated
March 4, 1965 of the Punjab High Court (Circuit Bench) at Delhi
in Civil Regular Second Appeal No. 125-D of 1964.
!~8
SUPREME COURT REPORTS
(1967) I S.C.R.
A. K. Sen, E. C. Agarwal and P. C. Agarwala, for the
A
appellant.
Gauri Dayal for the respondents.

## Text

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NAND KISHORE
V.
RAM KISHAN &: ANR.
August 25, 1966
[K. SUBBA RAO, C.J. AND J. M. SHELAT, J.]
Delhi Rent Control Act (S9 of 1958), ss. 17(3), 18(2) and 50, and
Delhi and Ajmer Rent Control Act (38 of 1952), s. 20-Tenancy determined before commencement of the Act of 1958-Sult by sul>-tenant claiming to l>e statutury tenant-If malntainal>le.
The landlord of the premises in dispute, obtained a decree for eject.
ment against bis tenant before the commencement of the Delhi Rent
Control Act, 1958.
The sub-tenant was not a party to that suit and
the 1ub-tenancy was not determined by that decree. In 1962, the 1ubteoa.nt filed a suit against the landlord claiming to have become a statutory tenant of the premises. The landlord contended that under s. 50
of the Act, no civil court shall entertain any suit in respect of a matter
which the C&.troller is empowered by or under the Act to decide, and
that as s. 17 ( 3) of the Act empowered the Controller to decide a dispute
in regard to the question whether a person was a sub-tenant or not, the ·
suit was not maintainable.
HELD : ·Section 50 was not a bar to the suit.
. The provision of the Act applicable to a case where the interest of a
l>mallt had been determined before the commencement of the Act, but
the interest of the sub-tenant was allowed to subsist is s. 18(2). Under
thiS sub-section the sub-tenant shall, with effect from the date of the
commencement of the Act, be deemed to have become, by a statutory
fiction, a tenant under the landlord. There ls no provision In the Act
under which a dispute in respect of 1uch a sul>-tenancy could be decided
by tho Controller. Any dispute raiSed by such a sub-tenant does not [all
tinders. 17(3). for, s. 17(3) applies only to a case where a dispute
arises during the subsistence of the main tenancy after the Act came
into force, ancl where the. dispute was raised within two months of the
issue of the notice of sub-letting, by the tenant or sub-tenant. [l 71 A-CJ
Mohd. Mapwod v. Tikam Das, (1966] 1 S.C.R .. 128, explained.
Moreover, under ·s. 20 of the Delhi and Ajmer Rent Control Act.
1952, on the eviction of the tenant, the sub-tenant would be deemed
to have become a tenant of the landlord. There is no provision in th•
Deihl Rent Control Act, 1958, which took away that vested right or
empowered the Controller to decide a dispute raised in regard to it.
Section 50, therefore could not have any bearing on the maintainability
of the suit. (171 E-0]
·
CIVIL' APPELLATE JURISDICTION: Civil Appeal No. 467 of 1966.
Appeal by special leave from the judgment and decree dated
March 4, 1965 of the Punjab High Court (Circuit Bench) at Delhi
in Civil Regular Second Appeal No. 125-D of 1964.
!~8
SUPREME COURT REPORTS
(1967) I S.C.R.
A. K. Sen, E. C. Agarwal and P. C. Agarwala, for the
A
appellant.
Gauri Dayal for the respondents.
The Judgment of the Court was delivered by
Subba Rao, C. J. This appeal by special leave raises the question of the construction of some of the provisions of the Delhi
Rent Control Act, 1958 (Act 59 of 1958), hereinafter called the
Act.
Appellant-Isl defendant is the owner of premises No. 6022,
Gali Mandir Wali, Arya Samaj, Delhi.
Ram Saran Das, respondent No. 2 herein, was the tenant of t.he appellant in respect
of the said premises and Ram Kishan Das, respondent No. I herein, was a sub-tenant.
On January 30, 1959 the appellant obtained
a decree for ejectment against the 2nd respondent from the court
of the Subordinate Judge, Delhi. To that suit the 1st respondent.
the sulrtenant, was not made a party.
When that decree was
sought to be executed against the 2nd respondent, the j~t respondent
obstructed delivery of possession of the premises on the ground
that he, as a sub-tenant, had become a tenant under the provisions
of the Act. The executing court rejected his claim. Thereafter,
on May 22, 1962, the 1st respondent filed a suit in the Court of
the Senior Subordinate Judge, Delhi, against the appellant and
respondent 2 praying for a decree for a permanent injunction
against the. appellant and the 2nd respondent restraining the appellant from taking possession of the said premises. The appellant
inter a/ia contended that s. 50 of the Act was a bar to the· maintainability of the suit in a civil court.
It is not necessary to state
the other defences, as nothing turns on them in this appeal. The
said plea was rejected. in the first instance by the learned Subordinate Judge, on appeal by the learned Senior Subordinate Judge and
on Second Appeal by the High Court. Hence the appeal.
The only question that arises in this appeal is, whether s. 50
of the Act is a bar to the maintainability of the suit filed by the
!st respondent against the appellant.
The learned counsel for the appellant contended that s. 50
of the Act was a bar to the maintainability of the suit, as s. 17
of the Act empowered the Rent Controller to decide a dispute in
regard to the question whether a person was a sub-tenant or not.
The learned counsel for the I st respondent contended that
s. 17(3) of the Act applied only to a case where a dispute arose
during the subsistence of tenancy, that in the instant case the tenancy
had come to an end before the Act came into force. that the !st
rcspondcnl became a tenant under sub-s. (2) ofs. 18, that a dispute
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NAND KISHORE v. RAM IOSHAN (Subba Rao, C.l.)
169
in regard to tbe question whether he had become a statutory
tenant thereunuer was not a dispute triable by the Rent Controller
and that, therefore s. 50 of the Act was not a bar to the maintainability of the suit.
Alternatively, the learned counsel for the !st respondent
contended that the !st respondent had become a tenant under
s. 20 of the Delhi and Ajmer Rent Control Act, 1952, that there
was no provision in the Act conferring exclusive jurisdiction on
the Rent Controller in respect of the said right vested in him before the Act and that, therefore, the suit for a declaration of the
'aid pre-existing right was maintainable in the civil court.
The solution to the rival contentions depends on the true
construction of the relevant provisions of the Act. Under s. 50
of the Act, no civil court shall entertain any suit in respect of a
matter which the Controller is empowered by or under the Act
to decide. If the Controller, in exercise of the power conferred on
him under the Act, can decide the dispute in respect of the claim
of the !st" respondent to a statutory tenancy, there cannot by any
doubt that his suit is not maintainable in a civil court. S. 17(3)
of the Act on which reliance is placed for invoking the aid of s. 50
reads:
"Where in any case mentioned in sub-section (2), the
landlord contests that the premises were not lawfully sublet, and an application is made to the Collector in this
behalf, either by the landlord or by the sub-tenant, within
two months of the date of the receipt of the notice of subletting by the landlord or the issue of the notice by the tenant
or the sub-tenant, as the case may be, the Controller shall
decide the dispute."
Under this sub-section, the Controller is empowered to
decide·
a dispute between the landlord and his sub-tenant in
respect
of any case mentioned in sub-s. (2) of s. 17. Sub-section (2) of s ..
17 of the Act says :
"Where, before the commencement of this Act, any
premises have been lawfully sub-let either in whole or in part
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by the tenant, the tenant or the sub-tenant to whom the
premises have been sub-let may, in the prescribed manner,
give notice to the landlord of the creation of the subtenancy within six months of the commencement of this Act,
and notify the termination of such sub-tenancy within one
month of such termination."
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To invoke this sub-section three conditions shall be
complied
with, namely, (i) the premises shall have been lawfully sub-let by
the tenant, (ii) the sub-letting shall have been before the commenceM14Sup.CI/66-12
170
SUPREME COURT REPORTS
(1967] I S.C.R.
ment of the Act, and (iii) such tenant or sub-tenant shall have
given a notice to the landlord of the creation of the sub-tenancy
within
six months of the commencement of the Act and notified the termination of such sub-tenancy within one month of such
termination. The dispute referred to in sub. s. (3) of s. 17 is in
regard to such sub-tenancy.
It is manifest from the provisions
of sub-s. (2) that the said provision applies only during the period
of subsistence of the tenancy created before the commencement
of the Act.
But, if the tenancy itself ceased to exist before the commencement of the Act,
the said sub-section has no application.
If the tripartite relationship of landlord,
tenant and sub-tenant
had ceased to exist before the commencement of the Act, no question of giving notice prescribed thereunder would arise. If subs. (2) does not apply to such a case, a dispute raised between them
cannot be raised before the Controller under sub-s. (3) of s. 17 of
of the Act. If that be the construction of sub-s. (2) and (3) of
s. 17 of the Act, s. 18(1) thereof would not equally help the appellant.
Under suh-s. (I) of s. 18 where an order for eviction in
respect of any premises is made under s. 14 against a tenant hue
not against a sub-tenant referred to in s. 17 and a notice of the subtenancy has been given to the landlord. the sub-tenant shall, with
effect from the date of the order, be deemed to become a tenant
holding directly under the landlord in respect of the
premises
in his occupation on the same terms and conditions on which the
tenant would have held from the landlord,
if the tenancy had
continued. This section also applies to a case of subsisting tenancy
after the Act came into force.
The reference to s. 14 presupposes
that an eviction order has been made against the tenant afler the
Act came into
force.
The sub-tenant mentioned therein is the
sub-tenant referred to in s. I 7 and in respect of whose sub-tenancy
a notice has been given to the landlord. that is to say. a sub-tenant
of a tenant during the subsistence of his tenancy.
In such a case
the sub-tenant becomes a statutory tenant.
This section cannot
have any application to a case where the tenancy ceased to exist
before the commencement of the Act. Suh-section (2) of s. 18
reads:
"Where, before the commencement of this Act,
the interest of a tenant in respect of any premises has
been determined without determining the interest of any
sub-tenant to whom the premises either in whole or in part
had been lawfully sub-let, the sub-tenant shall, with effect
from the date of the commencement of this Act, be deemed
to have become a tenant holding directly under the landlord on the same terms and conditions on which the tenant
would have held from the landlord, if the tenancy had
continued."
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NANO KISHORE v. RAM KISHAN (Subba Rao, C.J.)
171
This sub-section applies to a case where the interest of a tenant
had been determined before the commencement of the Act, but
the. interest of the sub-tenant was allowed to subsist. In such
a case, the sub-tenant shall with effect from the date of the commencement of the Act be deemed to have become, by a statutory
fiction, a tenant under the landlord. This situation could arise
before the commencement of the Act either because of a statute,
contract or a decree. Any dispute raised by such a sub-tenant
does not fall under sub-s. {3) of s. 17 of the Act, for, as we have
said, the said sub-section applies. only to a case where a dispute
arises during the subsistence of the main tenancy after the Act came
into force. If so, as there is no other provision in the Act under
which .a dispute in respect of such a sub-tenancy could be decided
by the Controller, s. 50 cannot have a bearing on the maintainability of a suit filed in respect of such a sub-tenancy.
If that be the construction of the relevant provisions of the
Act, the 1st respondent is not hit by the provisions of s. 50 of the
Act. The landlord by obtaining a decree for eviction against
the 2nd respondent put an end to the tenancy before the commencement of the Act. The sub-tenancy of the
I st respondent was
not determined by the decree, as he was neither a party to the
suit nor his rights were put in issue therein.
He can, therefore,
claim to be a tenant under s. 1S{2) of the Act. As s. 50 does not
apply to him, he can file a suit in a civil court for a declaration of
his right thereunder.
The same result will flow if we look at the matter from a different aspect. Under s. 20 of the Delhi and Ajmer Rent Control Act,
1962, on the eviction of the tenant, the sub-tenant would be deemed
to have become a tenant of the landlord. The appellant obtained
a decree for eviction against the 2nd respondent 011 January 30,
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.f.·
1959. The Act came into force subsequently. He had therefore
acquired a vested right under the Act of 1952.
No provision of
the Act has been pointed out to us which too)c away that right.
There was also no provision under "the Act empowering the Controller to decide a dispute raised in regard to the said right vested
in the !st respondent. If so, it follows that s. 50 of the Act cannot
be a bar to the suit filed by the I st respondent for a declaration of
his said right.
The view expressed by us finds support in the unreported judgment of Mehar Singh, J. of the Punjab High Court, Circuit Bench at
Delhi i11 Smt. Viran Wanti Devi and another r. Jaswant Rai and
another('). There,
the learned Judge, after considering the
provisions of sub-ss. (2) and (3) of s. 17 of the Act, observed :
"It appears to me obvious on a "plain reading of those
two sub-sections of section 17 that the procedure provided
(I) Civil Revision No. 558-D of 1961 (Decided on 15-2-1962).
l 72
SUPREMB COURT REPORTS
[I 967) I S.C.R.
by those sub-sections is available to a tenant and
his
sub-tenant, during the subsistence of the tenancy and the
sub-tenancy, but where the tenancy has ceased to exist or
the sub-tenancy has ceased to exist those sub-sections are
apparently not attracted and resort cannot be had to their
provisions."
The learned counsel for the appellant relied upon a decision
of this Court in Mohd. Mahmood v. Tikam Das(•) in support of
his contention. That case arose under the provisions of the Madhya
Pradesh Accommodation Control Act, 1961. The provisions of
that Act, though not in pari materia with the provisions of the Act
now in question, are similar to those of the Act in many respects.
There, the landlord terminated the tenancy before the said
Act
came into force, filed a suit for ejectment and obtained a decree
for eviction on June 23, 1962, after the said Act came into force.
The said Act came into force on December 40, 1961.
On June 25
and 26, 1962, the appellants served notices on the landlord under
s. 15(2) of the said Act claiming that as the tenant had sub-let the
premises to them before the Act had come into force with the consent of the landlord, they had become his direct tenants under
s. 16(2) of the said Act and on June 28, 1962, the appellants filed a
suit against both the landlord and the tenant in a civil court praying
for a declaration that they had, in the circumstances. become direct
tenants of the premises under the landlord. On June 30, 1962,
the landlord sent a reply to the notices .sent by the appellants in
which he denied that the sub-letting by the tenant had been with
hi& consent or was lawful.
Here it may be mentioned that s.
I 5(2) of that Act corresponds to s. 17(2) of the Act and sub-s. (3)
of s. 15 of that Act corresponds to sub-s. (3) of s. 17 of the Act.
Section 45(1) of that Act, which bars a suit in a civil court is analogous to s. 50(1) of the Act. If the dispute was one that could
be decided by the Rent Controlling Authority under s. 15(3) of
that Act, the suit in respect of the dispute would not be maintainable by reason of s. 45(1) of the said Act.
Under sub-s. (3)
of s. 15 of that Act, a sub-tenant could make an application to the
Rent Controlling Authority for deciding a dispute
within two
months of the date of issue of notice by him. Instead of filing
such an application, the tenants filed a suit in the civil court within
the said time prescribed.
On those facts, this Court held by reason
of s. 45(1) of that Act, the suit was not maintainable. But in so
holding this Court left open the question whether such a suit could
be filed in a civil court after the period of limitation prescnbed
under s. 15(3) of that Act had expired. This Court
obser~ed:
"Another question mooted was that the two months
mentioned in sub-s. (3) only provided a special period of
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(I) [1966J 1 s.c.R. 128, 131.
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NAND KISHORE v. RAM KISHAN (Subba Rao, C.J.)
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limitation
for
the application mentioned in it and
the provision of the period did not mean that
a
Rent Controlling Authority had power to decide
the matter only if an application had been made
within that
period, so that if no such application
had been made, after the expiry of the period a civil court
would have jurisdiction to decide a dispute as to whether
a sub-letting was lawful. The point is that the real effect
of s. 15(3) was to deprive the civil court of the jurisdiction
to decide that dispute for all time. We do not feel called
upon to decide these questions. They do not arise in the
present case and it was not said that these questions affect
the question of the competence of the civil court to try the
present suit. The suit was filed within the period of two
months during which admittedly the Rent Controlljng
Authorities had jurisdiction to decide the dispute on which
it was based. Whatever may be the jurisdiction of a civil
court on other facts, in the present case it clearly had
no jurisdiction to entertain the appellants' suit."
The decision of this Court, therefore, has a limited scope. It has
only held that during the prescribed period under s. 15(3) of the
said Act, no suit would lie in a civil court. In the present case,
the suit was filed in the civil court beyond the period prescribed.
In the result, the appeal fails and is dismissed with costs.
V.P.S.
Appeal dismissed.