S.N Andley, C.J:— The point that arises for determination in this appeal is whether a landlord can evict a tenant on the ground referred to in clause (d) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958, hereinafter referred to as “the 1958 Act” in a case where the premises shall be deemed to have been lawfully sub-let within the meaning of sub-section (1) of section 16 of the 1958 Act and where the sub-tenant has been and is in occupation of the tenancy premises. Clause (d) aforesaid gives a right to the landlord to evict a tenant on the ground that the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession thereof. Concededly, the other grounds of eviction enumerated under the aforesaid proviso will be available to the landlord against the tenant even in a case where the sub-tenant shall be deemed to be a lawful sub-tenant as aforesaid.

The sub-tenant is the appellant in this appeal. The landlord, Bhagwan Dass deceased who is now represented by his legal representatives, had filed the petition for eviction of his tenant, Balwant Singh, respondent, and the latter's sub-tenant Reghubir Singh, appellant, alleging violation of clauses (b) and (d) of the proviso to sub-section (1) of section 14 of the 1958 Act. The Rent Controller by his order dated October 20, 1967 and, in appeal, the Tribunal by his order dated October 10, 1968 found that the appellant sub-tenant had been in possession of the entire tenancy premises comprising of three rooms, a kitchen and a bath room on the first floor and a Barsati on the second floor of the house bearing Municipal No. 4593, Darya Ganj, South Estate, Delhi, since May 7, 1949, that is, before the relevant date June 9, 1952 and had, therefore, to be deemed to be a lawful sub-tenant within the meaning of sub-section (1) of section 16 which provides:—

“Where at any time before the 9th day of June, 1952, a tenant has sub-let the whole or any part of the premises and the sub-tenant is, at the commencement of this Act, in occupation of such premises, then, notwithstanding that the consent of the landlord was not obtained for such sub-letting, the premises shall be deemed to have been lawfully sublet.”

The Rent Controller as well as the Tribunal, therefore, held that the landlord was not entitled to an order of eviction on the ground of sub-letting provided by clause (b) of the aforesaid proviso whereunder the ground for eviction is 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 finding of the Rent Controller and of the Tribunal that the sub-tenant appellant had been in possession of the tenancy premises since before June 9, 1952 has rightly not been challenged by the respondents in this appeal.

The Rent Controller and the Tribunal, however, found that the appellant sub-tenant had not given notice to the landlord as required by sub-section (2) of section 17 of the 1958 Act and, therefore, the appellant sub-tenant was not entitled to the protection given to a sub-tenant by sub-section (1) of section 18 of the 1958 Act. They, therefore, granted a decree for eviction in favour of the landlord on the ground covered by clause (d) of the proviso to sub-section (1) of section 14 of the 1958 Act which may shortly be described as the ground of non-occupation by the tenant of the tenancy premises. The contention on behalf of the appellant sub-tenant is that in as much as he is deemed to be a lawful sub-tenant within the meaning of sub-section (1) of section 16, the ground of eviction under clause (d) of the said proviso is not available to his landlord as otherwise it will lead to an anomally, the anomally being that even though the deemed lawful sub-tenant is in possession, the landlord can still recover possession from the tenant and, therefore, from the sub-tenant, on the ground of non-occupation by the tenant.

Sub-section (2) of section 17 and sub-section (1) of section 18 which are relevant to this controversy may now be set out:—

Section 17 (2) — “Where, before the commencement of this Act, any premises have been lawfully sub-let either in whole or in part 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 sub-tenancy within six months of the commencement of this Act, and notify the termination of such sub-tenancy within one month of such termination”.

Section 18 (1) — “Where an order for eviction in respect of any premises is made under section 14 against a tenant but not against a sub-tenant referred to in section 17 and a notice of the sub-tenancy 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.”

The 1958 Act replaced and repealed the Delhi and Ajmer Rent Control Act, 1952, hereinafter referred to as “the 1952 Act”. Clause (b) of the proviso to sub-section (1) of section 13 of the 1952 Act provided, inter alia, that the landlord could evict a tenant if he had sub-let the tenancy premises after the commencement of the 1952 Act without obtaining the landlord's written consent. The next clause (c) provided, inter alia, that the landlord could evict a tenant if the tenant had sub-let the tenancy premises without obtaining the consent of the landlord before the commencement of the 1952 Act. Clauses (b) and (c) aforesaid, therefore, required written consent as to sub-letting if it was after the commencement of the 1952 Act and even oral consent as to sub-letting before the commencement of this Act. Section 20 of the 1952 Act provided that where the interest of a tenant of any premises is determined for any reason, any subtenant to whom the whole or any part of such premises had been lawfully sub-let whether before or after the commencement of the 1952 Act shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions on which he would have held from the tenant if the tenancy had continued.

To preserve the rights of the sub-tenant thus created, the 1958 Act fixed June 9, 1952 — the date on which the 1952 Act had come into force — to be the relevant date to determine whether a sub-tenancy had become lawful. The 1958 Act made provision for it in section 16. Sub-section (1) of this section provided for sub-tenancies created before June 9, 1952 where the sub-tenant was in possession on the date when the 1958 Act came into force to have been lawfully created and sub-section (2) provided that if a tenancy had been created after June 9, 1952 without obtaining the consent in writing of the landlord, the sub-tenancy will not be lawful. Having so provided, section 14 of the 1958 Act did not contain any ground of eviction on the ground of sub-letting which was prior to June 9, 1952 and the only ground provided against sub-letting was by clause (b) of the proviso to sub-section (1) of section 14 of the 1958 Act in case of sub-letting after June 9, 1952 without obtaining the consent in writing of the landlord.

Then, section 17 of the 1958 Act wanted to protect a sub-tenant from eviction in a case where the tenancy premises had been lawfully sub-let even though there was a decree for eviction against the tenant on any ground provided in section 14. Such protection could be available to the sub-tenant only if he gave a notice as required by sub-section (2) of section 17 and if he did so then as provided by sub-section (1) of section 18 notwithstanding an order of eviction against the tenant on any ground under section 14, the sub-tenant was 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.

It, therefore, follows that in order to claim protection from eviction in execution of a decree for eviction against a tenant it is necessary for a sub-tenant including a sub-tenant who is a deemed lawful sub-tenant under sub-section (1) of section 16 to give a notice of the sub-tenancy to the landlord so that the landlord may, if he chooses to contest the lawful sub-tenancy, take proceedings under sub-section (3) of section 17 before the Controller. The mere fact that a sub-tenant is either deemed lawful sub-tenant under section 16 (1) or a sub-tenant with the previous consent in writing of the landlord under sub-section (1) of section 17 would not protect the sub-tenant against a decree for eviction against the landlord on any ground unless the sub-tenant is given the requisite notice as provided by sub-sections (1) and (2) of section 17. It would not make any difference to this position even if the ground for eviction against the tenant is the ground of non-occupation by him of the tenancy premises contemplated by clause (d) of the proviso to sub-section (1) of section 14 of the 1958 Act.

In Karam Singh Sobti and another v. Pratap Chand and another: 1964 (66) Punjab Law Reporter 210 (1), the Supreme Court while considering the provisions of the 1952 Act and the 1958 Act observed as follows:—

“With the details of these provisions we are not concerned in the present case except to point out that the Control Act of 1958 made radical changes in the matter of eviction of tenants on the ground of sub-letting. In the matter of subletting the relevant date was taken as June 9, 1952 the date on which the Control Act of 1952 came into force, and a distinction was made between sub-letting before that date and sub-letting after that date. A sub-letting before June 9, 1952 was treated as lawful sub-letting if the subtenant was in occupation of the premises at the commencement of the Control Act of 1958; but a sub-letting after June 9, 1952 without the previous consent in writing of the landlord was treated as unlawful for the purposes of the Control Act of 1958.”

Section 17 and 18 of the 1958 Act were construed by Dua, C.J (as his Lordship then was) in Roshan Lal…Plaintiff; v. Bhagwati Devi… 261) (2). The learned Chief Justice repelled the submission that where a sub-tenant is in lawful occupation of the premises let out to him by a tenant (who is his landlord) since prior to 9th June, 1952, then he is automatically entitled to the protection of section 18 of the Act and no notice under, section 17 (2) would be necessary as a condition precedent for claiming the status of a tenant under section 18 and observed:—

“When section 16 speaks of the deeming provision of lawful subletting, then all that it means is that the tenant who has sublet the premises, is not to be deemed to have sublet, assigned or otherwise parted with possession of the premises or a part thereof which would constitute a ground for his eviction within the contemplation of section 14. It does not mean that the sub-tenant would be deemed automatically to become a tenant when an order for eviction of the tenant is made under s. 14. In order to fill the vacuum created by the eviction of the tenant by permitting the subtenant to step into the evicted tenant's shoes, it is, in my opinion essential that a notice within the contemplation of section 17 is served in accordance with Rule 21 of the Delhi Rent Control Rules, 1959 framed under section 56 of the Act.”

In Shri Tara Chand v. Mst. Marrium Bi and another (1970 Rent Control Reporter 438) (3) Deshpande J., of this Court was considering the question whether the sub-tenant was a necessary party to the eviction proceedings. In this context he observed:—

“It is not necessary or even permissible to make a person a party to the eviction proceedings unless he has a right to continue to occupy the premises even after the tenant is evicted. The appellant would have had such a right if he had been entitled to the benefit of Section 18 (1) of the Act having complied with the provision of Section 17 (2) thereof. Since he was not such a person his non-joinder was correct. In this connection, a distinction may be borne in mind. A sub-tenancy created prior to 9-6-1952 is deemed to be created lawfully in view of Section (1) of Section (16). The meaning is that the creation of such a sub-tenancy would not give the landlord a cause of action to evict the tenant under proviso (b) to sub-section (1) of section 14. This alone is, however, not sufficient for such a sub-tenant to continue in possession after the termination of the tenancy of the person from which such a sub-tenant derives his right. On the general principle that the right of the sub-tenant depends on the continuance of the right of the tenant, the sub-tenant goes out with the tenant. Section 18 (1), however, confers a special right on a sub-tenant to become a direct tenant of the landlord, after the termination of the tenancy of the tenant provided that such a sub-tenant has complied with the provisions of Sub-section (2) of Section 17. It is this special right which alone, could have enabled the appellant to continue in possession after the eviction of the tenant. It is clear that the appellant has not acquired this special right in the present case. The conclusion is that even if the appellant is assumed to have been a lawful sub-tenant within the meaning of sub-section (1) of section 16, he is not entitled to continue in possession after the eviction of the tenant under sub-section (1) of section 18.”

Apart from the conclusion as a matter of construction of the relevant provision of the 1958 Act, there is abundant authority for the proposition that even a deemed lawful sub-tenant has to serve the requisite notice in order to acquire the status of a tenant and to claim protection from eviction in execution of a decree for eviction passed against the tenant on any of the grounds mentioned in section 14 of the Act. The argument of anomaly which has been raised by Mr. G. S. Vohra, learned counsel for the appellant sub-tenant, cannot, therefore, be accepted. All grounds including the ground covered by clause (d) aforesaid remain available to the landlord against the tenant even in cases where the sub-tenant has acquired the status of a lawful sub-tenant but not the status of a tenant after serving the notice required by sub-section (2) of section 17 of the Act.

The next argument was that clause (1) of section 2 of the 1958 Act which defines a tenant includes a sub-tenant within the meaning of the definition and, therefore the word “sub-tenant” is to be read throughout the Act wherever the word “tenant” is used. This argument cannot be applied by necessary implication and as a matter of construction in so far as the provisions of section 14 and section 16 to 18 are concerned.

The Tribunal and the Rent Controller were, therefore, right in coming to the conclusion that the appellant sub-tenant was not entitled to protection against eviction in this case. The appeal is, therefore, dismissed with costs. Counsel's fee Rs. 100/-.

Appeal dismissed.