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Case Number

Civil Revn. No. 134 of 1981

Attorney(S)

F.P.Bakhshi
A.V.Gupta

Judges

Hon'ble Sh. Justice M.L. Bhat

Acts

Cl. (c) of sub-section (1) of S. 11 of the Jammu and Kashmir Houses and Shops Rent Control Act, (shortly the Act)
Section 8;(1) Subject to the provisions of Section 12

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This revision arises from a suit for eviction concerning a double-storeyed house in Jammu city. The landlord sought eviction inter alia on the ground that tenant-defendant No. 1 had sublet the house to defendants Nos. 2 to 7 in contravention of a lease deed dated 4th Bhadoon, 2008 (BK) which expressly prohibited subletting without the landlord’s permission.

The defendants resisted the suit, asserting that the sub-tenants were necessary parties and that the suit was defective because not all sub-tenants had been impleaded. The trial Court held that the subletting amounted to a ground of eviction under clause (c) of sub-section (1) of Section 11 of the Jammu and Kashmir Houses and Shops Rent Control Act (the Act), and concluded that where eviction is sought under clause (c) (unauthorised sub-tenancy exceeding certain limits), the landlord need not make sub-tenants parties. The trial Court contrasted clause (c) with clause (h) (landlord's reasonable requirement), under which the Court observed that sub-tenants must be made parties.

The present revision challenges the trial Court’s distinction regarding the necessity of impleading sub-tenants and the role of the landlord’s permission in determining whether a sub-tenant is a necessary party.

Legal Issues Presented

Whether a sub-tenant is a necessary party to an eviction suit brought by the landlord against the tenant under Section 11(1) of the Act, irrespective of whether the subletting was with or without the landlord’s permission.
How clauses (c) and (h) of Section 11(1) of the Act should be interpreted with respect to (a) unauthorised sub-tenancy (clause (c)) and (b) situations where the landlord reasonably requires the premises (clause (h)), specifically whether the Act or the landlord's consent determines the necessity of making sub-tenants parties.

Arguments of the Parties

Revisionist's (appellant's) Arguments

The distinction drawn by the trial Court between clause (c) and clause (h) is erroneous.
Irrespective of whether the suit is based on clause (c) or clause (h), the sub-tenant is a necessary party.
It is immaterial whether subletting is with or without the landlord's consent — the sub-tenant is the person to whom subletting is made and therefore must be a party.

Defendants' Arguments (as presented in the trial Court)

The sub-tenants are necessary parties to the eviction suit.
The suit is bad because all sub-tenants have not been impleaded as defendants.

Trial Court's View (as described in the opinion)

The trial Court held that subletting in the present case fell under clause (c) of Section 11(1) and therefore constituted unauthorised sub-tenancy; as a consequence, the landlord need not make sub-tenants parties to an eviction suit based on clause (c).
The trial Court observed that clause (h) is different: where sub-tenancy is authorised (by lease or landlord consent), sub-tenants must be made parties to eviction suits under clause (h).
Because the landlord had in fact impleaded the sub-tenants in the present suit, the trial Court considered the controversy to be largely academic.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court began its analysis by referencing the non obstante clause in Section 11 of the Act, observing that the grounds of eviction specified by the Act are not to be enlarged or curtailed by any other Act or by the contractual agreement of the parties. The Court emphasized that whether a sub-tenancy is valid or not for the purpose of making a sub-tenant a necessary party depends on whether the Act countsenance that form of sub-tenancy, not on the landlord’s consent.

The opinion then examined the statutory text of clause (c) and clause (h) of Section 11(1):

Clause (c) provides for eviction where a tenant has sublet the whole or a major portion of the house or shop for more than seven consecutive months. The Court distilled clause (c) into two essential conditions: (i) subletting of the whole or a major portion of the demised premises; and (ii) the sub-tenancy has continued for more than seven consecutive months. Where both conditions are satisfied, clause (c) operates as a ground of forfeiture of the tenant's tenancy.
Where a sub-tenancy falls within clause (c) (i.e., it is an unauthorised creation that covers the whole or a major portion for more than seven months), it is not countenanced by the Act. In such a case, the sub-tenant is not a necessary party to a landlord’s suit for eviction based on clause (c), irrespective of whether the landlord had previously consented to the subletting.
Conversely, if the sub-tenancy does not fall within clause (c) — i.e., it does not impinge upon the specific conditions of clause (c) — then it is to be regarded as a sub-tenancy permitted by the Act. For such permitted sub-tenancies, clause (h) is relevant: when the landlord seeks ejectment (for reasons enumerated in clause (h)), the Act requires that all sub-tenants be made parties and be given an opportunity to contest the claim.

The Court found the trial Court erred in treating the validity of sub-tenancy as dependent on the landlord’s permission. Instead, validity must be assessed by reference to whether the Act permits the particular form of sub-tenancy. The consequence of this statutory approach is:

If the sub-tenancy is of the kind described in clause (c) (unauthorised major subletting for over seven months), the tenant may be liable to eviction without the sub-tenant being a necessary party.
If the sub-tenancy is not of that kind (i.e., is permitted by the Act), the sub-tenant is a necessary party to any eviction suit brought by the landlord on any ground during the subsistence of that permitted sub-tenancy, and must be given an opportunity to contest the claim.

Because the trial Court proceeded on the incorrect premise that landlord's permission governed the validity of sub-tenancy, the revising Court concluded that the trial Court's order could not stand. The revising Court therefore set aside the trial Court's order and remanded the matter for reconsideration in light of the principles laid down.

Holding and Implications

Holding: Revision allowed. The revising Court set aside the order of the trial Court and directed the trial Court to reconsider the matter in accordance with the legal principles articulated in the opinion. The parties were directed to appear before the trial Court on 7th April, 1982.

Implications:

The Court clarified that the test for whether a sub-tenant is a necessary party in an eviction suit under Section 11(1) is statutory: it depends on whether the sub-tenancy is one that the Act counts as permitted (in which case sub-tenants are necessary parties) or one that falls within clause (c) (unauthorised subletting of whole or major portion for over seven months, in which case sub-tenants are not necessary parties).
The immediate practical effect is that the trial Court must re-examine the factual circumstances of the sub-tenancy against the statutory criteria (clause (c) and clause (h)) rather than the presence or absence of the landlord’s consent, and then decide whether sub-tenants are necessary parties in the particular case.
No broader judicial pronouncement beyond this interpretative guidance is recorded in the opinion; the decision's direct effect is to remit the matter for fresh consideration on the clarified legal principles.

Revision allowed.

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S. Chela Singh And Others v. S. Tejinder Singh .

1. This revision arises out of a suit for the eviction of the defendants from a double storeyed house situate in Jammu city, inter alia, on the ground that the tenant-defendant No. 1 has sublet the house to defendants Nos. 2 to 7 in contravention of the terms of the lease deed dated 4th Bhadoon, 2008 (BK) which expressly provide that the tenant shall not sublet the house or any portion thereof to any person without the permission of the landlord. The defendants have resisted the suit, inter alia, on the ground that the sub-tenants are necessary parties and that the suit is bad because all the sub-tenants have not been impleaded as defendants in it. The trial Court has held that the subletting in this case is a ground of eviction under Cl. (c) of sub-section (1) of S. 11 of the Jammu and Kashmir Houses and Shops Rent Control Act, (shortly ‘the Act’) which comprehends the creation of unauthorised sub-tenancy by a tenant in the sense that he does it without the permission of the landlord and the inevitable consequence is that the landlord need not make the sub-tenant a party to the suit for eviction based on this ground. The Court has proceeded to observe that the position is not the same under Cl. (h) of sub-section (1) of S. 11 of the Act which comprehends authorised sub-tenancy in the sense that it is permitted by the terms of the lease or otherwise consented to by the landlord and the effect is that the landlord is under an obligation to make the sub-tenant a party to a suit for eviction based on any of the grounds mentioned in this clause. The Court has concluded that, in any view of the matter, the suit cannot be said to be bad because the landlord has already impleaded the sub-tenants as defendants and, consequently, the controversy is meaningless.

2. The argument of the learned counsel for the revisionist is that the distinction drawn by the trial Court is erroneous. He urged that, irrespective of the fact whether the suit is based upon Cl. (c) or Cl. (h) of sub-section (1) of S. 11 of the Act, the sub-tenant is necessary party. He emphasized that the sub-tenant is a person to whom and the tenant is the person by whom subletting is made and it is immaterial whether such subletting is with or without the consent of the landlord. In order to appreciate and determine the point, it will be necessary to refer to the relevant provisions of the Act. Section 11(1) of the Act, so far as relevant, reads:—

“11. Protection of a tenant against eviction.— Notwithstanding anything to the contrary in any other Act or law, no order or decree for the recovery of possession of any house or shop shall be made by any Court in favour of the landlord against a tenant, including a tenant whose lease has expired:

Provided that nothing in this sub-section shall apply to any suit for decree for such recovery of possession—

(a) …………..………………….

(c) against a tenant who has sublet the whole or a major portion of the house or shop for more than seven consecutive months:

Provided that if a tenant, who has sublet major portion of the house or shop, agrees to possess as a tenant the portion of the house or shop not sublet on payment of rent fixed by the Court, the Court shall pass a decree for ejectment from only a portion of the house or shop sublet and fix proportionately fair rent for the portion kept in possession of such tenant, which portion shall thenceforth constitute house or shop under clause (3) or clause (5) of S. 2 and the rent so fixed shall be deemed fair rent fixed under S. 8;

…..…………….…………………..

(h) Where the house or shop is reasonably required by the landlord either for purposes of building or re-building, or for his own occupation or for the occupation of any person for whose benefit the house or shop is held:

Provided that all sub-tenants in the house or shop are made parties to the suit and allowed opportunity of contesting claim to decree for ejectment.

Explanation.— The Court in determining the reasonableness of requirement for purposes of building or re-building shall have regard to the comparative public benefit or disadvantage by extending or diminishing accommodation, and in determining reasonableness of requirement for occupation shall have regard to the comparative advantage or disadvantage of the landlord or the person for whose benefit the house or shop is held and of the tenant:

Provided where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the house or shop and allowing the tenant to continue occupation of the rest, and the tenant agrees to such occupation, the Court shall pass a decree accordingly and fix a proportionately fair rent for the portion in occupation of the tenant, which portion shall henceforth constitute the house or shop within clause (2) or clause (5) of S. 2 and the rent fixed shall be deemed to be the fair rent fixed under Section 8;

(1) Subject to the provisions of Section 12 where the amount of two months rent legally payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract, or in the absence of such contract by the fifteenth day of the month next following that for which the rent is payable or by not having been validly deposited in accordance with S. 14:

Provided that no such amount shall be deemed to be in arrears unless the landlord on the rent becoming due serves a notice in writing through Post Office under a registered cover on the tenant to pay or deposit the arrears within a period of fifteen day from the date of the receipt of such notice and the tenant fails to pay or deposit the said arrears within the specified period.”

3. Section 11 contains a non obstante clause implying that the grounds of eviction under the Act are not subject to enlargement or curtailment by anything to the contrary contained in any other Act or law in force in the State. It necessarily follows that these grounds of eviction are not equally amenable to variation by the terms of the contract of the parties to the contrary even if the other Act or law countenances such contract. Accordingly it is not material that the landlord has consented or not to the creation of sub-tenancy by the tenant, but what is material is whether such sub-tenancy is countenanced by the Act. In this view, the trial Court has not tried to approach the matter in proper perspective in making the validity of sub-tenancy dependent upon the permission or absence of permission of the landlord. The validity or invalidity of sub-tenancy would really depend upon the fact whether it is permitted or not permitted by the Act. If it is permitted by the Act, then whether the landlord wanted it or not, it would be a valid sub-tenancy and in any suit for ejectment against the tenant, the sub-tenant would be a necessary party. On the other hand, if the sub-tenancy is not countenanced by the Act, then it would be an invalid sub-tenancy and the consent of the landlord would not lend validity to it and in a suit for ejectment by the landlord against the tenant, the sub-tenant would not be a necessary party. In this background, let me proceed to consider Cl. (c) of sub-section (1) of S. 11 of the Act. Clause (c) provides for eviction of a tenant where he has sublet the whole or major portion of the house or shop for more than seven consecutive months. It will be noticed that, in effect and substance, Cl. (c) provides for ground of eviction based upon forfeiture of tenancy where the following two conditions are satisfied viz.:

(i) That the tenant has sublet the whole or major portion of the house or the shop, and

(ii) That the period of sub-tenancy has exceeded seven consecutive months.

Thus Cl. (c) disentitles a tenant from creating a sub-tenancy, the essential features of which are that it takes in whole or major portion of the demised premises and more over extends over a period exceeding seven consecutive months. The sub-tenancy so created is unauthorised by the Act and if the tenant creates such sub-tenancy, whether with or without the consent of the landlord, he runs the risk of being evicted by the landlord and in a suit for eviction based on this ground, whether alone or in conjunction with any other ground, the sub-tenant would not be a necessary party. On the other hand, if the sub-tenancy is of a nature which does not impinge upon Cl. (c), the sub-tenancy would be deemed to be a permitted sub-tenancy and in a suit for eviction brought by the landlord against the tenant, on any ground whatsoever, the sub-tenant would be a necessary party, irrespective of the fact whether the landlord had consented or not to the creation of such sub-tenancy. Viewed thus, Cl. (h) takes care of a sub-tenancy permitted by the Act in the sense explained above and where the landlord seeks to sue the tenant on any ground mentioned in this sub-clause during the subsistence of such permitted sub-tenancy, the law requires the landlord to make the sub-tenant a party to the suit and enjoins upon the Court to allow him opportunity of contesting the claim of ejectment. The question whether the sub-tenancy is one permitted by the Act or not depends upon the circumstances of each case. In the present case, the trial Court has not thought it necessary to go into this question because of the fact that, in its opinion, the validity or invalidity of sub-tenancy was dependent upon the fact whether it was created with or without the permission of the landlord, and as I have said, this is an erroneous view of law. In the circumstances the order of the trial Court cannot be allowed to stand. It must be set aside and the trial Court must be asked to reconsider the matter and pass fresh orders after keeping in view the principles set out above. Allowing this revision, I make an order accordingly. The parties are directed to appear in the trial Court on 7th April, 1982.

Revision allowed.

S. Chela Singh And Others v. S. Tejinder Singh .

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Revisionist's (appellant's) Arguments

Defendants' Arguments (as presented in the trial Court)

Trial Court's View (as described in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

S. Chela Singh And Others v. S. Tejinder Singh .

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