# SOUTH ASIA INDUSTRIES PRIVATE. LTD v. S. SARUP SINGH AND OTHERS

- **Citation:** [1965] 3 S.C.R. 829
- **Court:** Supreme Court of India
- **Decided:** 1965-04-19
- **Case number:** Civil Appeal No. 149 of 1965
- **Bench:** A. K. Sarkar, J. R. Mudholkar, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/south-asia-industries-private-ltd-v-s-sarup-singh-and-others-3465
- **Pages:** 12

## Headnote

Delhi Rent Control Act (Act 59 of 1958), s. 14(1), Pr.oviso (b)~
Scope of.
The respondents were the owners of certain premises in New
Delhi. The lessee-a company-of these premises ass1gne.d the leas.e
to the appellant. Alleging that the transfer was done without their
consent, the respondents filed an application against .the lessee and
the appellant under s. 14(1) proviso (b) of the Delhi Rent Control
Act, 1958, for recovery of possession. Pending the proceedings, the
lessee went into liquidation and its name was struck off from the
record. The Controller thereafter, passed an order in favour of. the
respondents. Having moved unsuccessfnlly the Rent Control Tribunal and the High Court, the appellant, appealed to the Supreme
Court contending that: (i) the order made against the appellant,
after the lessee ceased to be a party, was incompetent, as the only
person against whom an order for recovery of possession
can be
made under the clause, is the tenant who assigned the tenancy, and
(ii) the clause in the lease by which the term "lessee" included the
lessee's assignee operated as a consent by the respondents, to assign.
HELD: (i) (Per Sarkar, J.). The Act contemplates orders for recovery of possession also against persons Other than a tenant who
has assigned or sub-let without the landlord's consent, so that, where
the tenant becomes extinct without leaving any successor, an order
can be made against a person who took an assignment of the lease
from the tenant before the lease became extinct. [833C, D-E]
The proviso expressly states when an order of ejectment can be
made and the clauses of the proviso are not intended to indicate the
persons against w.hom an order for recovery of possession could be
made, but only the circumstances in which an order for recovery of
possession may be made. [832E-G]
The expression "the tenant
11 in cl. (b) is used only to emphasise
that the tenant assigning must be the tenant of the landord seeking
eviction. So read, the effect of the clause is that a land-lord can recover possession if his tenant assi_gns or sub-lets without his consent
[832H, 833A-Bl
.
Since the object of the proviso is to enable the landlord to recover possession in the specified cases, orders against all "persons in
oc.cupation" must have been contemplat.ed so that the landlord might
without further tTouble recover posse~s1on. S~ction 18 plainly implies
that an order for recovery of possession against a sub-tenant is contemplated by the proviso. Further, the order for recovery of possession would, under s. 25, be binding on the assignee or sub-tenant and
ther~f?re, they \Vould be interested in showing that there was' the
requ1s1te coi:isent, and hence \Voulct be entitled to be m"ade parties to
the proceedmgs. If they are thus entitled to be heard to oppose the
order of ev1ct1on, such an order could be made ar:rainst them a1.:::o
[833F-G, H; 834C, E, H-835A]
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829
830
SUPH.EME COURT REPORTS
(1965) 3 S.C.R.
Per Bachawat J.(i): Both the tenant and the assignee were proA
perly parties to the proceedings for possession and if the tenant comf
pany had been dissolved, there is no reason why the proceedings
could not continue against the assignee alone. f839G]
It is true that other clauses of the proviso contemplate eviction
of the tenant on the ground of some act on the part of the tenant
against whom the proceeding for possession is brought, but under cl.
(b), the assignment is a ground of eviction of both the assigning
tenant and the assignee and the Controller has jurisdiction to make
an order for possession not only against the assigning tenant but
also against the assignee. [839H-840B]
Per Mudholkar J. (Dissenting)
The right which the respondents possessed to evict the defunct
company from the premises, because the company had assigned the
tenancy to the appellant without the respondents' consent could not
be availed< of by them, and the appellant could therefore continue in
possession. [838B-C]
B
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The ban against evicti

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SOUTH ASIA INDUSTRIES PRIVATE. LTD.
v.
S. SARUP SINGH AND OTHERS
April 19, 1965
[A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]
Delhi Rent Control Act (Act 59 of 1958), s. 14(1), Pr.oviso (b)~
Scope of.
The respondents were the owners of certain premises in New
Delhi. The lessee-a company-of these premises ass1gne.d the leas.e
to the appellant. Alleging that the transfer was done without their
consent, the respondents filed an application against .the lessee and
the appellant under s. 14(1) proviso (b) of the Delhi Rent Control
Act, 1958, for recovery of possession. Pending the proceedings, the
lessee went into liquidation and its name was struck off from the
record. The Controller thereafter, passed an order in favour of. the
respondents. Having moved unsuccessfnlly the Rent Control Tribunal and the High Court, the appellant, appealed to the Supreme
Court contending that: (i) the order made against the appellant,
after the lessee ceased to be a party, was incompetent, as the only
person against whom an order for recovery of possession
can be
made under the clause, is the tenant who assigned the tenancy, and
(ii) the clause in the lease by which the term "lessee" included the
lessee's assignee operated as a consent by the respondents, to assign.
HELD: (i) (Per Sarkar, J.). The Act contemplates orders for recovery of possession also against persons Other than a tenant who
has assigned or sub-let without the landlord's consent, so that, where
the tenant becomes extinct without leaving any successor, an order
can be made against a person who took an assignment of the lease
from the tenant before the lease became extinct. [833C, D-E]
The proviso expressly states when an order of ejectment can be
made and the clauses of the proviso are not intended to indicate the
persons against w.hom an order for recovery of possession could be
made, but only the circumstances in which an order for recovery of
possession may be made. [832E-G]
The expression "the tenant
11 in cl. (b) is used only to emphasise
that the tenant assigning must be the tenant of the landord seeking
eviction. So read, the effect of the clause is that a land-lord can recover possession if his tenant assi_gns or sub-lets without his consent
[832H, 833A-Bl
.
Since the object of the proviso is to enable the landlord to recover possession in the specified cases, orders against all "persons in
oc.cupation" must have been contemplat.ed so that the landlord might
without further tTouble recover posse~s1on. S~ction 18 plainly implies
that an order for recovery of possession against a sub-tenant is contemplated by the proviso. Further, the order for recovery of possession would, under s. 25, be binding on the assignee or sub-tenant and
ther~f?re, they \Vould be interested in showing that there was' the
requ1s1te coi:isent, and hence \Voulct be entitled to be m"ade parties to
the proceedmgs. If they are thus entitled to be heard to oppose the
order of ev1ct1on, such an order could be made ar:rainst them a1.:::o
[833F-G, H; 834C, E, H-835A]
0
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829
830
SUPH.EME COURT REPORTS
(1965) 3 S.C.R.
Per Bachawat J.(i): Both the tenant and the assignee were proA
perly parties to the proceedings for possession and if the tenant comf
pany had been dissolved, there is no reason why the proceedings
could not continue against the assignee alone. f839G]
It is true that other clauses of the proviso contemplate eviction
of the tenant on the ground of some act on the part of the tenant
against whom the proceeding for possession is brought, but under cl.
(b), the assignment is a ground of eviction of both the assigning
tenant and the assignee and the Controller has jurisdiction to make
an order for possession not only against the assigning tenant but
also against the assignee. [839H-840B]
Per Mudholkar J. (Dissenting)
The right which the respondents possessed to evict the defunct
company from the premises, because the company had assigned the
tenancy to the appellant without the respondents' consent could not
be availed< of by them, and the appellant could therefore continue in
possession. [838B-C]
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The ban against eviction of a tenant in s. 14(1) is lifted by the
proviso only with respect to the tenant and not to any other person,
because, a proviso is subservient to the main provision. Therefore, the
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tenant must be a party to the proceeding right up to the date of making of the order of eviction. Unless an order is obtained against the
tenant there would be no occasion for pressing in aid s. 25. Unlike
the case of death of or assignment by, a tenant, an anomalous position results wi)ere the tenant happening to be a company is dissolved during the pendency of proeeedings and cannot be represented by
any one, because of a lacuna in the law. But such lacuna cannot be
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removed bx_ the Courts without assuming a power to legislate.
[836H, 837F-H]
·
(ii) Per Sarkar J.: The clause in the lease according to which
"the lessee" includes his assignee, does not lead to the conclusion
tbat ~he lessor consented to the assignment. Besides, the consent contemplated by the proviso is a direct consent to a contemplated
assignment to a particular assignee. [835F-G]
F
Regional Properties Ltd. v. Frankenchwerth, [1951] 1 All E. R.
178, applied.
Per Bachawat J: The consent contemplated by cl. (b) may be
either general or special, but the clause in the lease would not
amount to a con8ent by the landlord to an assignment either expressly or by necessary implication. [840D-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 149 of
1965.
Appeal by special leave from the judgment and order dated
May 10, 1963 of the Punjab High Court (Circuit Bench) in S.A.0.
No. 40-D of 1963.
C. B. Agarwala, B. R. L. Iyengar, P. N. Chaddha, S. K.
Mehta and K. L. Mehta, for the appellant.
S. T. Desai and Gopal Singh for Harbans Singh, for respondents Nos. I & 2.
Gurcharan Singh and Gopal Singh for Harbans Singh, for respondents Nos. 3 to 5.
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s. ASJA INlHJS'l'lUl'~S i'. S1\H.FP (Sarkar, J.)
831
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Sarkar and Bachawat, JJ. delivered separate but concurring
judgments. Mudholkar, J. delivered a dissenting Opinion.
Sarkar, J. The respondents are the owners of certain premises
in Connaught Circus in New Delhi, which were let out to Allen
Berry & Co. <Calcutta) Ltd. Sometime in 1959 Allen Berry & Co.
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transferred the lease to the appellant and put the latter in possession.
Alleging that the transfer had been made without their consent, the respondents made an application under cl. (b) of the
proviso to sub-s. (1) of s. 14 of the Delhi Rent Control Act, 1958
to the Controller appointed under it against Allen Berry & Co. and
the a~pellant for an order for recovery of possession of the preC mises from them. While the application was pending, Allen
Berry & Co. went into liquidation and was in due course dissolved
and its name was, thereupon, struck off from the records of the
proceedings. The Controller later heard the application and made
an order in favour of the respondents for recovery of possession of
the premises from the appellant alone. An appeal by the appellant
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to the Rent Control Tribunal under the Act against this order was
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dismissed.
The appellant then moved the High Court of Punjab
for setting aside the order of the Tribunal, but there also it was
unsuccessful. It has now come to this Court in further appeal.
It was contended that the order for
re~overy of possession
made against the appellant after Allen Berry & Co. had ceased to
be a party to the proceedings, was incompetent. This contention
was based on an interpretation of the terms of sub-s. (J) of s. 14,
the material part of whici) is set out below:
S. 14
(1) Notwithstanding anything to the contrary contained in any other Jaw or contract, no order or decree
for the recovery of possession of any premises shall
be made by any court or Controller in favour of the
landlord against a tenant:
Provided that the Controller may, on an application made
to him in the prescribed manner, make an order for
the recovery of possession of the premises on one or
more of the following grounds only, namely:-
(a)
(b) that the tenant has, on or after the 9th day of June,
1952, sub-let, assigned or otherwise parted with
the possession of the whole or any part of the
premises without obtaining the consent in writing
of the landlord;
The contention of the appelJant was put in this way:
The
first part of sub-s. (]) of·s. 14 puts a complete ban on recovery of
nossess10n fron:i all tenants .. The pr<;>viso to it is only an excepting
clause and 11 hfts that ban m the crrcumstances mentioned in it.
It follows that the proviso, though it does not expressly mention
832
SUPJIE}!E
COURT
RE~ORTS
(1965) 3 S.C.R.
tenants, permits orders for recovery of possession against them
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alone.
The tenant in cl. (b) of the proviso means only the tenant
sought to be evicted under the proviso, such tenant having also to
be by the express terms of the clause, a tenant who has assigned
his ienancy. This follows from the use of the article "the" before
the word "tenant" there.
Therefore the only person against whom
an order for recovery of possession can be made under cl. (b) of B
the proviso to sub-s. (]) of s. 14 is the tenant who has assigned his
tenancy. No such order can, hence, be made against the person
to whom the tenancy has been assigned. As the appellant was
such a person, no order for eviction could be made against it.
I
wish to observe at once that if this contention is correct-which
I do no~ think it is-then the order could never be made against C
the appellant and the fact that Allen Berry & Co. ceased to be a
party to the proceedings made no difference in this regard.
The argument of the appellant is really. based on the article
"the" prefixed to the word "tenant" in cl. (b) of the proviso. It is
paid that the article -clearly indicates that the only person against
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whom an dl'der for ejectment can be made under cl. (b) is the tenant
who assigns or sub-lets or parts with possession of the tenancy
without the landlord's consent.
I am unable to accept this argu-
-nent.
The proviso expressly states that an order for ejectment
can be made "on one or more of the following grounds" and then
sets the grounds out in the different clauses that follow, one of E
which is cl. (b) with which we are concerned. The clauses, therefore, set out the circumstances in which the operative part of the
proviso is set in motion, that is, the circumstances in which an
order for recovery of possession may be made. If this is so, as I
think it is, the clauses could not have been intended to indiq1te
the person against whom an order for recovery of possession could
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be made. This purpose was entirely different.
I am not suggesting that an order for recovery of possession against the assigning tenant cannot be made.
All that I say is that the clauses do
not intend to indicate the persons against whom an order for
recovery of possession can be made and so it cannot be argued
that the order cannot be made against any other person.
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Now the article "the" appears to me to have been used to
show that the tenant assigning, must be the tenant of the landlord
seeking eviction.
So rea<i, the effect of the proviso in cl. (b) is
that a landlord can recover possession if his tenant has assigned,
sub-let or transferred possession without his consent. This would
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be the natural reading of the provision and would carry out the
intention of the . Act. If this is not the correct reading of the
provision, the situation would be anomalous.
As the word
"tenant" includes by virtue of its definition in s. 2(1), a sub-tenant,
it would at least be arguable that cl. (b) authorised a superior
landlord to recover possession when the sub-tenant assigned with·
out his consent.
That could not possibly have been intended for
1
8. ASIA INDUSTHIES I'. SAHUP (Sarkar, J.)
833
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the intermediate tenant would then have lost his tenancy for no
fault of his.
Therefore, I think the article "the" was used only to
emphasize that the tt'nant assigning must be the tenant of thehindlord seeking eviction.
The article "the" does nm, in my opinion,
lead inevitably to the conclusion that the only person against whom
an order for recovery of possession can be made on the ground
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mentioned in cl. (b) is the tenant assigning or sub-letting or parting
with possession of his tenancy without the landlord's consent.
I think there are good reasons why it must be held that the
Act contemplated orders for recovery of possession also against
persons other than a tenant who has assigned or sub-let without
C the landlord's consent. The offending tenant must of course go
for, as 1 have said, he is the immediate tenant of the landlord
desiring to recover possession and if he remains he would be.
entitled to possession and the landlord cannot recover possession.
But this does not mean that the order may not also direct the
removal from possession of others along with the immediate tenant
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when there is one.
The reason for this view I will presently state.
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If I am right in what I have said, it will follow that in a case like
the present where the tenant becomes extinct without leaving any
successor on whom the tenancy devolves, an order can be made
against a person who took an assignment of the lease from the
tenant before it became extinct.
l t is trite saying that the object of interpreting a statute is to
ascertain the intention of the legislature enacting it.
When I
enquire about the intention behind this statute, I find that far from
lending any support to the -appellant's contention it tends quite the
other way. First, I observe that the object of the first part of sub-s.
(!) of s. 14 is to ban all recovery of possession of tenanted premises
by a landlord and that of the proviso is to lift that ban in specified
cases. The object of the proviso is then to enable the landlord
to recover possession in any of the specified cases.
Assume that
the present is a case where the landlord became entitled to ·recover
possession under cl. (b) of the proviso; clearly then the statute
intended the landlord to recover possession. It would be our duty
to give effect to that intention unless the language used made it
plainly impossible.
I have earlier said that the language used does
not compel the view that the only person against whom an order
for recovery of possession can be made is the tenant assigning or
sub-letting without the landlord's consent. That being so, orders
against all "persons in occupation" must have been contemplated
so that the landlord might without further trouble recover possession.
Further I find it impossible to hold that the language used
indicates an intention that when a right has accrued to a landlord
to recover possession, that right would be taken away from him
when the tenant assigning has become extinct without leaving a
successor, an event which is only accidental and certainly rare. A
court would be fully justified in holding that in such a case it was
834
8UPREME
COUR'l'
U.EPOHTS
[1965] 3 ~.C.R.
intended that an order for recovery of possession can be made
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against the assignee alohe f~r that would enable the object of the
statute which was to enable the landlord to recover possession, to
be achieved.
An interpretation which
defeats the object of a
statute is, of course, not permissible.
Then, looking at s. 18 of the Act I find that it clearly colltemB
plates an order for recovery of possession under s. 14 against a
sub-tenant. It says, "Where an order for eviction in respect of any
premises is made under s. 14 against a tenant but not against a
sub-tenant referred to in section 17", then in the circumstances
mentioned, the sub-tenant shall be deemed to become a direct
tenant under the landlord. This section plainly implies that an
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order for recovery of possession against a sub-tenant is contem·
plated by cl. (b) of the proviso to sub-s. q) of s. J.4. The appellant's
argument to the contrary cannot be sustained against the clear
implication of the Act. If s. 14 contemplates an eviction order
against a sub-tenant, it must . equally contemplate such an order
against assignees of tenants, Jor the section makes no distinction
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between sub-tenants and assignees for the purpose of making such
orders.
I am not unmindful of the fact that where an order for recovery of possession of any premises is made under s. 14 against
a tenant assigning or sub-letting without the landlord's consent. E
that order would under s. 25 of the Act be binding on all persons
in occupation of the premises except those who leave independent
title to them. This section does not however say that an order
for recovery of possession against an assignee of a lessee cannot
be made. It would not, therefore, support an argument that an
order for recovery of possession could be made under s. 14 against
an assignee or a sub-tenant. On the other hand, it seems to me that
to an application under cl. (b) of the proviso to sub-s. (!) of s. 14
an assignee or sub-tenant, as the case may be, should be a proper
party. Under this provision an ejectment order can be made only
when the assignment or sub-letting was without the consent of the
landlord. If it was with such consent, the assignee or the sub-tenant
would be protected by the Act. An assignee or a sub-tenant is,
therefore, interested in showing that there was the requisite consent.
They should hence be entitle;i to be made parties to the proceedings.
Otherwise, if under s. 25 an eviction order obtained against the
direct tenant is binding on them, they would be liable to be condemned without a hearing. It is no argument against this view that
the direct tenant would protect them, for they cannot be made to
depend on him for the protection of their rights. The direct tenant
may be negligent or incompetent in his defence; he may even collude
with the landlord or he may just not bother. If the assignee or the
sub-tenant is thus entitled to be heard to oppose the order for
eviction, that would be another reason .for saying that an order
eviction could be made against them also; if they could oppose the·
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o. A'1-' l'DUSTRIES v. SARUP (Mud/dkar, J.)
835·
A making of the order, it would be unnatural to say that the order
could not be made against them. In what I have said in this paragraph, I do not wish to be understood as holding that in view of
s. 25 an order for eviction ~.gains! a tenant is in fact binding on his
assignee or sub-tenant. Such a decision is not necessary for this case.
[ wish, however, to point out that ifs. 25 does not make the ejectB ment order so binding, the appellant cannot resort to it for any
assistance.
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I have now dealt with the first argument in support of the
appeal and I find it unacceptable. The other argument was that
the order for recovery of possession was unwarranted as in fact
there had been a consent of the respondents to the assignment in
favour of the appellant. It is said that the consent was given by
a clause in the lease under which Allen Berry & Co. held which
reads as follows: -
"That whenever such an interpretation. would be nece>sary
in order to give the fullest
scope and effect legally
possible to any covenant or contract herein contained,
the expressi0n "The Lessor" hereinbefore used shall
include his heirs, executors, administrators and assigns
and the expression "THE LESSEE" hereinbefore used
shall include their representatives and assigns."
I am unable to accept this contention also.
I notice that the lease gave no express right to the lessee to
assign with or without the consent of the lessor. The lessee no
doubt had that right under the Transfer of Property Act. It may
be that under the clause the lessee's assignee would be included in
the expression "lessee" as used in the lease; that is the entire effect
of th~ clause.
But this would be so whether the lessor had consented to the assignment or not.
Therefore, this clause does not
lead to the conclusion that the_ lessQI' had consented to the assignment. It is of no assistance in the present case. I am also
inclined to the view that the consent contemplated by s. 14(1)
proviso (b) is a direct consent to a contemplated assignment to a
particular assignee: see Regional Properties, Ltd. v. Frankenschwerth(').
Clearly the clause in the case relied upon could not
be a consent of this kind.
This point, therefore, also fails.
For these reasons I would dismiss the appe~.J with costs.
Mudholkar, J, In this appeal by certificate granted by the PunH
jab High Court an unusual question arises for consideration. 'That
question is whether an application made under s. 14(i)(b) of the
Delhi Rent Control Act, 1958 by a landlord of a building in Delhi
against a tenant who happens to he a company incorporated under
the Indian Companies Act, cannot be proceeded with and granted
on the ground that before the making of any order thereon by the
(') (1951) I All. E.R. 178.
SUPREME COURT REPORTS
[1965] 3 s.c.R.
Rent Controller the Company. is dissolved and is struck oil' the
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record of the case. According tg the appellant who claims to be an
assignee from the original tenant, that is, the Company, such an
application cannot be proceeded with. and· granted while accordiiig
to the respondent landlord the fact that the company is dissolved
makes no difference.
The facts which are not in dispute and which have been stated
in the judgment of Bachawat J., need not be recapitulated because
what I have already said is sufficient to enable me to deal with
othe point.
The relevant part of s. 14(1) reads thus :
"Notwithstanding anything to the contrary contained in any
other law or contract no order or decree for the recovery of possession of any premises shall be made by
any Court or Controller in favour of the landlord
a,gainst a tenant:
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Provided that the Controller may, on an application made D
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to him in the prescribed manner, make an order for the
recovery of possession of the premises on one or more
of the following grounds only, namely: -
"
(b) that the tenant has, on or after the 9th day of June,
1952, sublet, assigned or otherwise parted with the
possession of the whole or any part of the premises
without obtaining the consent in writing of the landlord;
"
It is not necessary to refer to cl. (a) or to the several clauses
following cl. (b) in this sub-section or to any of the sub-sections of.
s. 14.
Looking at sub-s. (!)what we find is that it enacts a bar to
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the making of an order or decree for the recovery of possession of
any premises by any court or the controller against a tenant. In
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other words the jurisdiction of a civil court or even of the Rent
Controller to make an order of eviction against the tenant is taken
away. The proviso, however, lifts the ban against eviction in certain circumstances one of which is that set out in cl. (b). What is
important to bear in mind is that sub-s. (!) is intended to protect
the possession of the tenant.
A proviso to a section or a sub-secH
tion is subservient to the main provision. , It would, therefore,
follow that the ban against the eviction is lifted only with respect
to the possession of the tenant and not of any other person. In
110 far as persons other than the tenant who may be in possession
of the premises which pertain to the . tenancy is concerned, the
matter is dealt with by s. 25 and we can leave that out at any rate
for the present. Another thing to be noticed about s. 14 is that
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s. MIA INDUSTRIES v. SARUP \Mudholkar, J.)
837
though under s. 2(i)(b) of the Act the word "tenant" includes
several other persons in addition to the one with whom there was
a contract that expression must be regarded as relating to the same
individual in the entire section or at least in sub·s. (!) of s. 14
wherever it occurs. Thus, if in the first part of sub-s. (I) of s. 14
"tenant" is regarded as meaning as "assignee" of the tenant then
it would have to be given the same meaning in cl. (b) of sub-s. (I)
of s. 14. That is to say that if there is a sub-letting or a further
assignment or any other kind of parting with possession by an
assignee of the original tenant (the assignment by the original
tenant having been accepted or acquiesed in by the landlord) such
assignee can be evicted by the landlord if the action of the assignee
of the kind mentioned was taken by him without his written consent.
Now, since sub-s. (!) is a bar to the jurisdiction of the Rent
Controller to make an order or decree for recovery of possession
against a tenant it must necessarily follow'that the tenant must be
D
a party to a proceeding before him right up to the date of the
making of the decree or order.
Thus, if the tenant dies during the
·pendency of th~ proceedings and his legal representative is not
substituted on the record in his place, the proceeding will abate
against him and the Rent Controller will ))ave no jurisdiction to
make an order in favour of the landlord. That is to say, the proE
viso will not be available to the landlord no matter what the tenant
had .done if the records of the proceeding became defective because neither the tenant nor his legal representative was any
longer "! party to those proceedings.
The reason for this is that
the ground upon which the landlord's application is based can be
availed of for lifting the ban on the eviction by the Rent Controller
F
of the tenant alone.
Unless an order is obtained against the tenant there would be no occasiOn for pressing in aid the provisions
of s. 25 of the Act.
Where during the pendency of the proceedings
before the Rent Controller the tenant dies or makes an assignment
of whatever interest he may still have left in the demised premises
no difficulty would arise
because his legal representative or
G assignee could be brought on record in his place. But, it must
be admitted, that an anomalous position results where the tenant
happening to be a company is dissolved during the pendency of the
proceedings and can, therefore, be not represented by any person.
The Act does not contemplate this position nor even does the Code
of Civil Procedure and so we have it that the defect in the record
H
resulting from the dissolution of a company cannot be removed at
all.
The result, however, of this is that the jurisdiction of the
~ Controller to proceed with the application of the landlord and therefore to make eventually an order or decree entitling the landlord
to recover possession from the tenant ceases to be exercisable. Apparently this curious position arises because of a lacuna in the
law.
Such a lacuna cannot be removed by the Courts without
assuming the power to legislate-whit:h obviously is beyond the
838
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COURT
REPORTS
[1965) 3 s.c.R.
competence of any court. The duty of courts is merely to adA
minister the law as they find it. The only way for remedying the
defect is for the legislature to step in and amend the law.
The result of what has happened in this case is that the right
which the landlord possessed to evicV the now defunct company
from the premises through the. intervention of the Rent Controller B
because the company had assigned the demised premises to an·
other without his consent can no longer be availed of by him. The
assignee, who is the appellant before us, can therefore contintte
to be in possession of the premises even though he may have been
liable to be evicted with the aid of s. 25 had the company not been
dissolved in the meanwhile. Whether the landlord has now a a
right under the general law to evict the appellant is not a matter
upon which I would express an opinion because it does not strictly
arise at this stage. For these reasons I would allow the appeal,
set aside the orders of the courts below and dismiss the application
of the respondent-landlord under s. 14(1)(b) of the Act. In the
particular circumstances of the case I would direct that costs D
throughout shall be borne by the parties as incurred.
Bachawat, J. Originally one-Amar Sarup owned the land and
building at p•·1t No. 5, Block 'M', Connaught Circus, New Delhi.
By a lease dated March 1, 1956, Amar Sarup leased the property_
to Allen Berry & Co. (Calcutta) Ltd., (hereinafter referred to as the E
tenant) for a period of five years on a monthly rent of Rs. 297 / ·.
Sometime thereafter, Amar Sarup transferred the property to the
respondents.
In or about May,
1959, the tenant assigned the
tenancy rights. and parted with possession of the whole of the
premises to the appellant. On October 6, 1959, the respondents
filed an application before the Rent Controller, Delhi praying for
F
eviction of the tenant and the appellant. The tenant, a limited
company, had gone into voluntary Jiq1uidation on September 26,
1959 and it was finally wound up an~ dissolved on October 29,
1960. On its dissolution, the tenant ceased to exist, and by order
of the Rent Controller, its name was s)ruck off from the array of
parties in the pending application. By an order dated October
G
10, 1962, the Rent Controller passed [
order of eviction against
the appellant. An appeal by the app llant to the Rent Control
Tribunal, Delhi was dismissed on Janu ry 23, 1963, and a second
appeal to the Punjab High Court was ismissed on May 10, 1963.
A Letters Patent Appeal from the ordfr dated May I 0, 1963 was
dismissed on December II, 1963 on \he ground that the appeal B.
was not maintainable. and an appeal to this Court from the last
•
order was dismissed on January 18, 1965. The appellant has now
preferred this appeal from the order dated May 10, 1963 by special
leave granted by this Court.
The respondents-landlords instituted the proceeding for eviction of the tenant and its assignee relying on the provisions of
1
•
t
A
B
c
s.
ASIA INDUSTitIES v.
·~UP (Bac/iawat, J.)
839
s. 14(1) of the Delhi Rent Control Act, 1958 (Act 59 of 1958). the
relevant portion of which is as follows:
"14()). Notwithstanding anything to the contrary contained in any other law or contract, no order or decree
for the recovery of possession of any premises shall be
made by any court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made
to him in the prescribed manner, make an order for
the recovery of possession of the premises on one or
more of the following grounds, namely: -
•
•
•
(b) that the tenant has, on or after the 9th day of June,
I 962 sub-Jet, assigned or otherwise parted with the
possession of the whole or any part of the premises
without obtaining the consent in writing of the land-
·n
lord;"
E
F
G
11
The case of the landlords is that "the tenant has ... assigned ...
the whole of the premises without obtaining the consent in writing
of the landlord", and, therefore, the Controller had jurisdiction to
make an order for possession.
The tenant is forbidden by s.
I 6(3)(b) of the Act to make the assignment, for contravention of
s. !6(3)(b) he is punishable
with fine under s. 48(2), and the
assignment is a ground for eviction under s. 14(1), proviso, paragraph (b), and so, the landlords submit that the Controller had
jurisdiction to make the order for possession against the tenant
and its assignee, and on the dissolution of the tenant, against the
assignee alone.
Counsel for the appellant contended that the Controller had
no jurisdiction to make the order for possession in the absence of
the original tenant. I cannot accept this submission.
Both the
tenant and the assignee were properly parties to the proceedings
for possession, and if the tenant-company bad not been dissolved,
the Controller would have been competent to make the order for
possession. The tenant bas since been dissolved and ceased to
exist, no one can be substituted in its place, and I do not see why
the proceedings cannot now continue against the assignee alone.
Paragraph (b) of the proviso to s. 14(1) evidently contemplates
proceedings for possession against both the tenant and the assignee, who as a result of the assignment bas been put in possession
of the premises. Counsel for the appellant made the alternative
submission that paragraph (b) contemplates an assignment by the
tenant against whom the order for eviction is made, and as the
appellant was the assignee and not the assignor, there was no
ground for its eviction under paragraph (b). It is true that other
paragraphs of the proviso contemplate the eviction of the tenant
on the ground of some act on the part of the tenant against whom
840
SUPREME
COURT
REPORTS
[1965] 3 s.c.R.
the proceeding for possession is. brought, but under paragraph (b), A
the assignment is a ground of eviction of both the assigning tenant
and the assignee, and in the event of an assignment without the
consent in writing of the landlord, the Controller has jurisdiction
to make an order for possession not only against the assigning
tenant but also against the assignee.
Counsel for the appellant next referred us to cl. 7 of the lease,
which is in these terms:
"That, whenever such an interpretation would be necessary
B
in order to give the fullest scope and effect legally
possible to any covenant or contract herein contained, 0
the expression 'The Lessor' hereinbefore
used shall
include his heirs, executors, administrators and assigns
and the expression 'The Lessee' hereinbefore used shall
include their representatives and assigns."
Counsel for the appellant submitted that by cl. 7 of the lease, the
landlords have given their consent in writing to the assignment. I D
cannot accept this submission. The consent in writing within the
meaning of paragraph (b) of the proviso to s. 14(1) may be either
general or special, but no such consent was given by cl. 7.
The
effect of cl. 7 is that the assignee of the lease enjoys the benefits
and is subject to the burden of the covenants in the lease, but the
clause does not amount to a consent by the landlord to an assignE
ment either expressly or by necessary implication. The assign·
ment to the appellant was without the consent in writing of the
respondents. The Controller rightly passed the order for. possession of the premises.
Counsel for the appellant contended that the contractual term F
of the lease not having expired on October 6, 1959, the proceeding
before the Controller was not maintainable. We indicated in the
course of the argument that this contention not having been raised
in the Courts below, we are not inclined to allow the appellant
to raise it here for the first time.
G
In the result, the appeal is dismissed with costs.
ORDER
In accordance with the opinion of the majority, the appeal is
dismissed with costs. The appellant will have a month's time from B
today to vacate the premises:
1