Chief Justice:— This revision petition under Section 50 of the Karnataka Rent Control Act, 1961 (hereinafter referred to as ‘the Act’) has been referred to a Division Bench by Nesargi, J., who has observed that in Ningappa Konerappa & Anr. v. Shankarappa Shidarayappa & Ors.(1) decided by one of us, the effect of Section 30 did not appear, to have been considered vis-a-vis Section 22 of the Act.
(2) Respondent-1 herein (hereinafter referred to as ‘the landlord’ (presented a petition under Section 21 of the Act for eviction of Respondent-2 herein (hereinafter referred to as ‘the tenant’) and the petitioner here in (hereinafter referred to as ‘the sub-tenant’) from certain shop premises in Udupi Town. The grounds on which such eviction was sought for were those specified in clauses (c) (f) and (h) of sub-section (1) of Sec. 21 of the Act.
(3) The learned Munsiff granted a decree for eviction on all those three grounds. The Separate Appeals preferred by the tenant and the sub-tenant were dismissed by the District Judge, who upheld the eviction on the grounds specified in clauses (c) and (h) only of Sec. 21(1). He held that the sub-letting of the premises which had taken place prior to the coming into force of the Act, could not for in a grounds for eviction. The sub-tenant has preferred this revision petition.
(4) The material facts are, briefly these: Originally the petition premises belonged to one Dr. K. Shiva Rao who leased the same to the tenant in the year 1950. After both Dr. Shiva Rao and his wife died, the landlord claimed, to have become the owner of the premises as the heir and presented the petition for eviction. In her petition, she alleged, inter alia, that the tenant had made unauthorised constructions in the petition premises and that the landlord and her husband required the premises for their own occupation to start a business therein. Both the Courts below have concurrently held in favour of the landlord on these two points and have also held that greater hardship would result by refusing a decree for eviction than by granting such eviction.
(5) In this petition, Sri Tukaram S. Pai, learned Counsel for the petitioner (the sub-tenant), canvassed the correctness of the above findings of the Courts below. As pointed out by the Supreme Court in Dattonpant v. Vithal Rao,(2) the power conferred on the High Court under Section 50, thought not as narrow as the revisional power of the High Court under Section 115 C.P.C is not wide enough to make the High Court a second Court of first appeal. Sri Tukaram Pai has not been able to show any justifiable grounds to interfere with these concurrent findings of the Courts below.
(6) Sri Tukaram Pai that the Courts below could not pass a decree for eviction, against both the tenant and the subtenant in the same proceeding in view of the protection given to the sub-tenant under Section 22 of the Act and that by merely impleading the sub-tenant also as a party to the petition against the tenant, the protection given to the subtenant by Section 22, could not be defeated.
(7) Though the above contention, had not been urged on behalf of the sub-tenant in either of the courts below, we have permitted this contention to be advanced for the first time in this revision petition since this contention involves, purely a question of law and relates to the jurisdiction of the Court. Before proceeding to examine this contention, it is useful to set out the relevant provisions of the Act.
(8) The word ‘tenant’ as defined in clause (r) of Sec. 2 of the Act, does not include a sub-tenant or any other person placed in occupation of a premises by the tenant thereof.
Section 22 of the Act reads:
“Where the interest of a tenant of any premises is determined for any reason, any sub-tenant to whom the premises or any part thereof has been lawfully sub-let before the coming into operation of this Act shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued.”
Section 30 of the Act reads:
“Notwithstanding anything contained in any other law, where the interest of the tenant in any premises is determined for any reason what-so-ever and any order is made by the Court under this Act for the recovery of possession of such premises the order shall, subject to the provisions of Section 21, be binding on all persons who may be in occupation of the premises and vacant possession there to shall fee given to the landlord by evicting such persons therefrom:
Provided that nothing in this section shall apply to any person who has an independent title to such premises.”
(9) Sri Tukaram Pai contended that Section 22 provides that where the premises had been sub-let, and the tenancy has been determined by a decree for eviction passed against the tenant in chief, the sub-tenant should be deemed to have become the direct tenant of the landlord on the same terms and conditions as between the landlord and the tenant in chief, and that thereafter if the landlord wants to evict such sub-tenant, the landlord should take separate proceedings for eviction of such sub-tenant (who has become the deemed tenant).
10. Sri Tukaram Pai sought to derive support for his contention from certain observations of the Supreme Court in Hiralal v. Kasturbhai(3) while considering analogous provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (hereinafter referred to as the Bombay Rent Control Act). There, the landlord had filed a suit under Section 28 of that Act against both his tenant in chief and the sub-tenant on the grounds of arrears of rent and unauthorised sub-letting and the appellate Court had granted a decree for eviction holding that the sub-tenant was a trespasser, but, did not pass a decree for eviction against the tenant in chief. In revision, the High Court upheld that decree though on different grounds. In the appeal from the decision of the Bombay High Court, the Supreme Court set aside the judgements of the High Court as well as of the appellate Court on two grounds; firstly, when there was no decree for eviction against the tenant in chief, a decree for eviction could not be passed against the sub-tenant and secondly, when once the appellate Court held that the sub-tenant was a trespasser, the Court had no jurisdiction under Section 28 of the Bombay Rent Control Act to pass a decree for eviction against a trespasser. The Supreme Court, repelled the contention urged on behalf of the landlord that on the determination the tenancy by issue of notice to the tenant in chief, the subtenant became the tenant in chief under Section 14 of the Bombay Rent Control Act and that hence, a decree for eviction could be passed against the sub-tenant. The Supreme Court observed at page 1856:
“Learned Counsel for the respondents however contends that the words’ is determined used in Section 14 are analogous to the determination of tenancy by notice under Sec. Ill (h) of the Transfer of Property Act (No. 4 of 1882) find all that Sec. 14 requires is that there should be determination of the tenancy under Sec. 111(h) of the Transfer of Property Act. We are of opinion that in the context of the Act this is not the meaning to be given to the words ‘is determined for any reason’. These words in the context of the Act mean that where the interest of a tenant comes to an end completely, the pre-existing sub-tenant may, if the conditions of Sec. 14 are satisfied be deemed to be a tenant of the landlord. The interest of a tenant who for purpose of Sec. 14 is contractual tenant comes to an end completely only when he is not only no longer a contractual tenant but also when he has lost the right to remain in possession which Sec. 12 has given to him and is no longer even a statutory tenant. In other words Sec. 14 would come into play in favour of the sub-tenant only after the tenancy of the contractual tenants has been determined by notice and the contractual tenant has been ordered to be ejected under Section 28 on any of the grounds in Sec. 12 or Sec. 13. Till that event happens or till he gives, up the tenancy himself the interest of a tenant who may be a contractual tenant for purposes of Sec. 14 cannot be said to have determined i.e, come to an end completely in order to give rise to a tenancy between the pre-existing sub, tenant and the landlord’.
[Emphasis supplied]
11. Referring to the above observations, Sri Tukaram Pai, submitted that the Supreme Court has laid down that where the tenancy of a contractual tenant has been determined by notice and he has been ordered to be ejected on any of the grounds contained in the Rent Control Act, then the sub-tenant would become the direct tenant of the landlord and that if the landlord wants to evict him, fresh proceedings should be taken for such eviction. In other words, according to Sri Tukaram Pai where the sub-letting is not unlawful, the landlord who wants to get possession of the premises has to bring two separate proceedings, one against the tenant in chief and thereafter, another against the subtenant who is deemed to have become the direct tenant after such eviction of the tenant in chief and that it is not permissible to the landlord to ask for a decree for eviction against both the tenant and the sub-tenant in the same proceeding by making both of them parties there to. Sri Tukaram Pai was not able to explain on what principle the landlord should be driven to the necessity of taking two such separate proceedings for obtaining possession of his premises and why one proceeding against both the tenant in chief and the sub-tenant should not be sufficient to get a decree for eviction.
(12) A similar contention was considered and repelled in Indian Coffee Workers Co-operative Stores v. Bacheobhai(4) by a Division Bench of the Bombay High Court which observed at page 212:
“Again in case where a landlord has sued both the tenant and sub-tenant for possession on the ground that he wants the premises for has personal use it could not be intended that he must thereafter start another litigation against the sub-tenant. For if Section 14 is allowed to have uncontrolled effect after the termination of the tenant's tenancy, the Sub-tenant would become the tenant and then “he could claim a fresh notice for eviction. The section, we think means that the sub-tenant would be deemed to have become a tenant, if the landlord is other wise not entitled to possession.”
In Mangharam Chuharmal v. B.C Patel(5), while considering the effect of Section 14 of the Bombay Rent Control Act, Bhasme, J., after noticing the decision of the Supreme Court in Hiralal v. Kasturibhai (supra,) observed thus:
“If the landlord seeks possession on the grounds which are not personal to the tenant and which concern the premises themselves, that it is open to the land lord in the same suit to plead and prove those grounds not only against the tenants but against the other persons impleaded in the suit and who are ultimately held to be lawful sub tenants. In such a case the issues would be heard and decided between the landlord on the one side and the tenants and sub tenants on the other. If the sub-tenants are not impleaded, even in such a suit then the landlord, after obtaining decree against the tenant, will have to file a fresh suit against the sub-tenants why by then had become his direct deemed tenants by virtue of Sec. 14 of the Rent Act.”
In Hiralal Das v. Pasupati Charan Biswas(6) a Division Bench of the Calcutta High Court, while considering analogous provisions of the West Bengal Premises Rent Control (Temporary Provisions Act, 1950), observed at page 228:
“We accordingly hold that the true meaning of the words used in S. 13(2) is that the sub-tenant will acquire the status of a tenant under the landlord only in those cases where the tenant loses his immunity from eviction on and around other than those embodied in clause (h) of the proviso to S. 12(1) but that the sub-tenant will not acquire that status but will be liable to be evicted when the landlord “requires the premises for his own occupation or for the purpose of building or rebuilding.”
(13) We are in respectful agreement with the aforesaid elucidations by the High Courts of Bombay and Calcutta. Sections 22 of the Act which provides that the sub-tenant becomes the tenant on determination of the tenancy, merely protects the interest of the sub-tenant when the tenant in chief surrenders the tenancy to the landlord or where the tenant in chief commits any default or otherwise incurs forfeiture of the tenancy on any ground personal to him, which entitles the landlord to determine the tenancy. Section 22 of the Act is not intended to defeat or delay the landlord obtaining possession of the premises for his own occupation or for demolition and reconstruction of the premises. We are unable to read the aforesaid observations of the Supreme Court in Hiralal v. Kasturbhai (supra) as laying down that where the landlord wants to occupy his premises which have been sublet by his tenant in chief and brings a petition or suit for eviction impleading both the tenant in chief and the sub-tenant as parties, a decree for eviction passed in such proceeding will be effective only against the tenant in chief and that thereafter the sub-tenant will become the tenant in chief for evicting whom the landlord should take separate proceeding.
(14) Lastly, it was contended by Sri Tukaram Pai that even if a decree for eviction is to be granted, it should be in respect of a portion of the petition premises so that the sub-tenant who has been carrying on business in the premises for over 20 years may continue his business in the remaining portion of the premises.
(15) The premises consist of only one room and a verandah and that the Utter is enclosed and used as godown. It will not be convenient for the landlord to carry on her business in only a portion of the petition premises. Hence, we are unable to accede to the request of Sri Tukaram Pai.
(16) However, it is reasonable that the revision petitioner who will be displaced from the premises where he has been carrying on business for a long time, should be given sufficient time to secure alternative accomodation. Accordingly, we grant him time till 31-3-1979 to vacate the petition premises.
(17) Subject to the above modification, this petition is dismissed.
18. Parties will bear their own costs.