B.N Kirpal, J.:— The appellant was a lawful subtenant in respect of premises House No. 2130, Ward No. VII, Katra Gokul Shah, Bazar Sita Ram, Delhi. The aforesaid premises, prior to 1968, where owned by Shri R.N Kaul and two of his brothers. At that time Dr. Zutshi was the tenant. The appellant herein was a sub-tenant of Dr. Zutshi. According to the con-current findings of the Courts below lawful sub-tenancy had been created in favour of the appellant by Dr. Zutshi, with the consent of the then landlord, in February, 1952.
2. In 1968 Sultan Khan, the decree holder bought the premises in question. He filed an application for eviction of Dr. Zutshi and one Smt. Sushila Devi. The appellant was also impleaded as one of respondents. The application was filed by the respondent-landlord for seeking eviction on the grounds specified in Section 14(1) (a), (b), (d) and (h). It is not disputed that Dr. Zutshi deposited the rent in Court and therefore, the claim for eviction under section 14(1)(a) came to an end.
3. During the pendency of the eviction proceedings, the respondent No. 1 landlord made a statement to the effect that he Wanted to give Up the appellant. The appellant was deleted from the arroy of respondents and the eviction petition against him was dismissed as withdrawn. Subsequently the respondent landlord entered into a compromise with Dr. Zutshi and Smt. Sushila Devi. As a result of that compromise, an order of eviction Was passed on 2nd June 1971 in favour of Respondent No. 1 on the grounds mentioned in Section 14(1) (d) and (h).
4. The respondent landlord thereafter moved an application for execution of the aforesaid order of eviction. Naturally the appellant herein filed objections to the same. It was, inter alia, contended by the appellant herein that he was a lawful sub-tenant and he had served a notice dated 12th May, 1959 of the creation of a sub-tenancy and this notice under Section 17 of the Delhi Rent Control Act, 1958 had been sent under Certificate of Posting. It was also contended that the decree dated 2nd June, 1971 was a collusive one and was not binding on the appellant.
5. In reply the respondent landlord denied the receipt of the alleged notice under Section 17(2) of the Act. The other contentions raised by the appellant were also controverted.
6. After recording the evidence of the parties, the trial court came to the conclusion that the appellant was a lawful sub-tenant having been inducted as such in February 1952 with the consent of the then landlord. The trial court, however, held that no notice under Section 17(2) had been served by the appellant on the previous owner/landlord, and that the Certificate of Posting which had been filed was not a genuine document. It was further held that service of the alleged notice had not been effected in the manner prescribed under Rule 22 of the rules framed under the Act. The trial court, therefore, concluded that the appellant had not become a direct tenant under the decree holder and was, therefore, not entitled to get the benefit of Section 18 of the Act.
7. Being aggrieved an appeal was filed before the Rent Control Tribunal. The Tribunal upheld the order of the Rent Controller and rejected the objections which were filed.
8. Before me the first contention which is raised by Shri Makhija, the learned counsel for the appellant is that even if it be assumed that a notice under Section 17 of the Act had not been sent nevertheless the appellant was admittedly a lawful sub-tenant and therefore, even if an order of eviction was passed against Dr. Zutshi, the appellant could not be evicted. The learned counsel contends that the purpose of giving notice of the creation of sub-tenancy under Section 17 of the Act is merely to inform the landlord and with a view that if the landlord chooses to contest he can move an application under Section 17(3) of the Act. It was, therefore, contended by the learned counsel that no order of eviction against a tenant can result in the eviction of a lawful sub-tenant.
9. The argument of Shri Makhija that the provisions requiring the giving of notice under Section 17(1) or 17(2) of the Act are only to enable the landlord to file an application under Section 17(3) appears to be attractive at first sight. It is, however, not open for the learned counsel to urge this contention with any force because, on this point, the matter is no longer res integra. A Division Bench of this Court in the case of Murari Lal v. Abdul Ghaffar and others, (1973 R.C.R 748) has held that if no notice is given under Section 17 of the creation of the sub-tenancy, the then subtenant can not get the benefit of Section 18, and he cannot be deemed to have become a tenant holding directly under the landlord after an order of eviction has been passed against the tenant. As I am bound that the said decision, I must hold that the order of eviction passed against Dr. Zutshi would not make the appellant a tenant directly under the respondent landlord,
10. It is true that sub-tenancy was lawfully created in favour of the appellant. A sub-tenant, in general law, cannot get a better title then the person through whom he derives the title, viz., the tenant. If, therefore, a tenant is liable to be evicted, then all the persons including the sub-tenant have to vacate alorgwith the tenant. Section 18 of the Act, however, sought to carve out an exception to this general rule. Section 18 provides that where a notice Under Section 17 has been given for the creation of a sub-tenancy, then if an order of eviction has been passed against the tenant, then the sub-tenant will be deemed to have become a tenant holding directly under the landlord. Order of eviction may be passed against the tenant under any of the clauses (a) to (1) of Section 14(1) of the Act, if the benefit of Section 18 of the Act is not available to the sub tenant, then the sub-tenant will have to vacate the premises alongwith the tenant and if the provisions of the section 18 are applicable, then the sub-tenant can legitimately claim to be regarded as a tenant directly under the landlord. Section 18 categorically states that the benefit thereof is available only to a sub-tenant who is referred to in Section 17 and who has given a notice of the creation of the sub-tenancy to the landlord. In other words, in order to obtain the benefit of Section 18, it is necessary that the sub-tenant should show and prove that a notice envisaged under Section 17(1) has been given to the landlord. If such a notice is given, then the sub-tenant cannot be evicted if a decree of eviction has been passed against the tenant without impleading the sub-tenant in those proceedings. Section 14(3) makes this position very clear. If no such notice is given, then the sub-tenant will have to vacate the premises when an order or eviction is passed against the person through whom he is deriving the title, Viz., the tenant.
11. Faced with the aforesaid difficulty Mr. Makhija made a valient attempt to try and convince me that the finding of the Courts below that valid notice had not been served as envisaged by Section 17 is not correct. I am unable to agree with the learned counsel. Firstly, whether a valid notice under Section 17 had been given or not is a pure question of fact. On this question there is a concurrent finding against the appellant. I do not see any reason why that concurrent finding should be interfered with. In any case, the contention of the learned counsel is that a notice was sent under Certificate of Posting. It is not disputed that notices are to be given in the manner prescribed by the rules. Rule 22 states that unless otherwise provided by the Act, any notice which is required to be given shall be served on any person either by delivering it to the person or by forwarding it to the person by Registered Post with acknowledgement due. It is not denied that the notice was not sent by Registered Post with acknowledgement due If this be so, then the appellant has to prove that the said notice was actually delivered to the then landlord. Apart from leading evidence that a notice under Section 17 was sent under Certificate of Posting, there is admittedly no direct or other evidence which can lead to the conclusion that the notice was infact delivered to the addressee. The delivery of the notice to the person concerned contemplated by Rule 22(a) means actual physical delivery of the notice. There is no evidence on record to this effect. Merely because notice is alleged to have been sent under Certificate of Posting cannot lead to the conclusion that the notice was actually delivered to the landlord. Even if it be assumed, for the sake of argument that a postman who carries the letter sent under Certificate of Posting is an agent of the author of the letter, it must still be shown that the postman actually physically delivered the letter to the addressee. If there had been any evidence to this effect, it could possibly have been contended that the notice had been duly served in the manner provided by Rule 22(a). Evidence to this effect is, however, lacking in the present case. Merely sending of notice even by writing the correct address, but not by Registered Post acknowledgement due but by Certificate of Posting would not amount to complying with the provisions of Rule 22. Under these circumstances, the only conclusion which can follow is that there has been no proof of service of notice in the manner prescribed by the Act and the Rules. Therefore, as there was no valid notice served on the landlord under Section 17 of the Act, the sub-tenant is unable to get the protection of Section 18. This would mean that the order of eviction having been passed against the tenant, then by virtue of the provisions of Section 25 of the Act, the sub-tenant will also have to vacate the premises in question. In my opinion, therefore, the objections of the appellant were rightly rejected.
12. No other contention was raised before me. For the aforesaid reasons the appeal is dismissed, but in the circumstances of the case the parties will bear their own costs. Mr. Makhija contended that as the appellant had been in possession of the premises for a long time and is a poor man, he should be given some time to vacate the premises. If the appellant deposits the arrears of rent and future rent within two weeks from today, the appellant will be entitled to retain possession of the premises in question for a period of three months from today.