BHOOLCHAND AND ANR.versusKAY PEE CEE INVESTMENTS AND ANR.

                . BHOOLCHAND AND ANR.
                                                                              A
                           v.
           KAY PEE CEE INVESTMENTS AND ANR.

                          OCTOBER 10, 1990

     (J.S. VERMA AND K. JAYACHANDRA REDDY, JJ.]                               B

       Karnataka Rent Conrol Act. 1961-Sections 21(41and50---Sub-
/etting without written constent of the landlord eviction of tenant-
Written consent of landlord for subletting-Whether enures to benefit
of tenant during subsistence of statutory tenancy after expiry of con-
tractual tenancy.
                                                                              c
      T.A. Jotindraoath Mndaliar, the original lessor, let oot Jijs pre-
mises viz. two shops and a hoose adjoining the shops to M/s.Bhoolchaod
Chandiram, appellant on 4.10.1943 on the terms contained in the letter
dated 4.10.1943 whereby the shops were let ont on a monthly rent of
Rs.430 for two years with the option of sub-letting one of the shops and      D
the house adjoining the shops was let oot on a monthly rent of Rs.so for
eleven months with the option of sub-letting the hoose also. The appel-
lant sub-let one of the two shops to one 'Arts Palace' and later w.e.f.
1.4.1948, the appellant inducted .another sub-tenant M/s. Super Dry
Cleaners, appellant in the other appeal. Consequent upon a partition in
the family of original lessor, the premises in dispute came to the share of   E
Narendranath Mudaliar. The original lessor including Nareodranath
Mudaliar after partition continued to realise rent from the tenant of the
entire premises till May 1974. On 28.6.1974, Nareodranath Mudaliar
sold the property in question to respondent No. 1. The appellant-
teoants attomed in favour of respondent No. 1 and paid rent for the
premises @ Rs.335 (fair rent fixed) to respondent No. 1. Respondent           F
No. 1 Ttled· a petition on 5.9.1975 for eviction of the appellant on the
grounds of sub-letting and bona fide need of the landlord under clauses
(I) and (h) of the proviso to sub-section (1) of Section 21 of the
Karoataka Rent Act.

      The trial court dismissed the application, but the High Court set       G
aside that order and passed a decree for eviction on both the grounds.
Hence these appeals by the tenant and sub-tenant have been filed after
obtaining special leave of the Court.

      The appellants question the f"mdings of the High Court on both the
questions viz. bona fide requirement of the landlord as also sub-letting.     H

                                    251
    252         SUPREME COURT REPORTS                I 1990] Supp. 2 s.C.R.
A   Respondent No. i on the other hand urged that there is no inflnnity in
    the High Court's decision on both the questions so as to warrant any
    interference in these appeals.

          Dismissing the appeals, this Court,
B
          HELD: Landlord's written consent for sub-letting during the
    period of contractual tenancy cannot be construed as his consent sub-
    sisting after the expir,y of the contractual tenancy. [265DJ

          A sub-letting by the tenant with the consent in writing of the
    landlord .does not become unlawful on the expiry of the contractual
c   tenancy of the tenant, unless there is any fresh sub-letting by the tenant
    without the written consent of the landlord. Mere continuance in pos-
    session of a sub-tenant lawfully inducted does not amount to any fresh
    or further sub-letting. [265E-FJ
                 '
          The sub-letting In the instant case was after expjry of the con-
0   tractual tenancy and after the commencement of the Act .prohibiting
    sub-letting without the written consent of the landlord when it was
    made on 1.4.1948. [265B]

          Damadilal and Ors. v. Parashram and Others, [1976] supp. SCR
    645; Dhanapal Chettiar v. Yesodai Amma/, [1980] 1 SCR 334; Smt.
E   Gian Devi Anand v. Jeevan Kumar and Ors., [1985] Supp. 1 SCR 1;
    L. Mahabir Prasad Verma v. Dr. Surinder Kaur, [1982] 3 SCR 607;
    M/s. Shalimar Tar Products Ltd. v. H.C. Sharma and Ors., [1988] 1
    SCC 70; Shanti/al Rampuria and Ors. v. Mis. Vega Trading Corpn. and
    Ors., [1989] 3 SCC 552; M/s. Bajaj Auto Ltd. v, Behari Lal Kohli,
    [1989] 4 SCC 39; Duli Chand (dead) by Lrs. & Ors. v. Jagmender Dass,
F   [1990] 1 SCC 169 and Tara Chand and Anr. v. Ram Prasad, [1990] 3
    sec 526, referred to.
         CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 470 I
    and 4702 of 1985.

G        From the Judgment and Order dated 12 .12.1983 of the Karnataka
    High Court in C.R.P. No. 3765 of 1981.

          Dr. Y.S. Chitale, Rameshwar Nath, Ravinder Nath and
    Sukumar Ghosh for the Appellants in C.A. Nos. 470 I and 4702 of
    1985.          .
H
          BHOQLCHAND v. K.P.C. INVES1MENTS (VERMA, J.J            253

      P. chidambram, S.S. Javali, H.R. Anantha Krishna Murthy and
Ranjit Kumar for the Respondents in C.A. Nos. 4701 and 4702 of           A
1985.

      The Judgment of the Court was delivered by

      VERMA, J. These appeals by special leave are by the tenant and     B
the sub-ten.ant against a decree for eviction passed on the grounds of
sub-letting and the reasonable and bona fide requirement of the
respondent-landlord specified in clauses (f) & (h) of the proviso to
sub-section 1 of Section 21 of the Karnataka Rent Control Act, 1961
(hereinafter called 'the Act'). The Trial Court had rejected the land-
lord's application for an order of eviction on these grounds, but the
High Court in a revision under Section 50 of the Act has set aside the   c
Trial Court's order and passed the decree for eviction on these
grounds. Hence these appeals.

      The material facts are undisputed at this stage. The premises
comprises of two shops and a house adjoining the shops and belonged      D
earlier to one T.A. Jotindranath Mudaliar. The premises were Jet out
by the original lessor. to M/s. Bhoolchand Chandiram (Appellant in
Civil Appeal No. 4701of1985) on 4.10.1943 on terms contained in the
letter dated 4.10. 1943 from the original lessor to M/s. Bhoolchand
Chandiram which reads as under:
                                                                         E
           ''T.A. Jotindranath                         933, Laxmipur
           Mudaliar.                                   Mysore,

                                                       4th October 43

           To                                                            F
           Messrs. Boolchand Chandiram,
           Silk Merchant,
           C/o Messrs. Bhagwandas Shyam
           sunder & Co.,
           112, Commercial Street,                                       G
           Bangalore Cant!.

           Dear Sirs,
                                          /

                With reference to your letter dated 30th Sept. 43 and
           your persona_] conversation about renting out my shops in     H
    254        SUPREME COURT REPORTS               [1990] Supp. 2 S.C.R.      •

A              the Commercial Street, Bangalore Cantonment, it is agreed
               and confirmed that you are prepared to take the .two shops
               at monthly rent of Rs.430 (Rs. Four! hundred and thirty
               only) with two years agreement and three month's advance
               and execute the necessary rental Deed, with the option of
               sub-letting one of the shops. As for the House adjoining
B              the shops at monthly rent of Rs.50 (Rs. Fifty only) with one
               mpnth's advance and Eleven Month's rental Deed. You
               have the option of sub-letting the house also.

                                                          Yours sincerely,
                                                                      sd/-
                                             T.A. Jotindernatl1 Mudaliar"
c
          M/s. Bhoolchand Chandiram continued as a tenant in the pre-
    mises and sometime in the year 1946 sublet one of the two shops to one
    'Arts Palace'. Later, w.e.f. 1.4.1948 the appellant M/s. Bhoolchand
    Chandiram inducted another sub-tenant M/s. Super Dry Cleaners
D   (Appellant in Civil Appeal No 4702 of 1985) in place of Arts Palace in
    the same shop. In 1960, a partition took place in the Hindu Undivided
    Family of Mudatiar brothers, the original lessor and the suit premises
    fell to the share of Narendranath Mudaliar. M/s. Bhoolchand
    Chandiram continued in the premises as the tenant with Super Dry
    Cleaners as the sub-tenant in one shop from 1.4. 1948. The original
E   lessor (including Narendranath Mudaliar after partition in the HUF of
    Mudaliar brothers) continued to take rent from the tenant M/s.
    Bhoolchand Chandiram of the entire premises i.e. two shops and the
    house adjoining the shops till May, 1974. On 28.6.1974, the said
    Narendranath Mudaliar executed a registered sale deed in favour of
    respondent No. 1, M/s. Kay Pee Cee Investments, a registered part-
F   nership firm comprising of three ladies of one family as partners, for
    the sale consideration of Rs.1,40,000. It may be mentioned that in a
    proceeding for fixation of standard rent between the original lessor
    and the tenant, monthly rent of Rs.325 was fixed for the entire pre-
    mises i.e. two shops and the house and the rent due upto May, 1974
    was paid by the tenant to the original lessor. After execution of the
G   said sale deed in favour of respondent No. L the tenant attorned in
    favour of respondent No. 1 and paid rent for the entire premises @
    Rs.325 per month to respondent No. I.

          The suit premises comprises of Shop. Nos. 44 and 45 (New Nos.
      & 2) in commercial Street, Bangalore Cant!. and House No. 250
H   (New No. 22 Narain Pillai Street Cross). Admittedly, the premises are
                  '
               BHOOLCHAND v. K.P.C. INVESTMENTS (VERMA, J.]               255

    in a prestigious commercial locality of the city of Bangalore. Respon-
    dent No. 1 landlord claims that the entire suit premises is reasonably A
    and bona fide required by the landlord for its own business as agents of
    various textile mills for the purpose of opening a showroom for which
    it was purchased. It is also alleged that one of the shops was unlawfully
    sublet w .e.f. 1.4.1948 giving rise to the other ground of sub-letting also
    for eviction. The respondent No. l gave a notice on 31.7.1975 ter- B
    minating the appellant-tenant's tenancy. Thereafter on 5.9.1975 a peti-
    tion was filed by respondent No. I for eviction of the appellant on the
    grounds of sub-letting and bona fide need of the landlord under clauses
    (f) & (h) of the proviso to sub-section I of Section 21 of the Karnataka
    Rent Control Act, 1961. As earlier stated, the Trial Court dismissed
    the application, but the High Court has set aside that order and passed C
    a decree for eviction on both the grounds.                 ·

          The ground of sub-letting is to be decided on the above undis-
    puted facts· on the basis of legality of the ·act of sub-letting on 1.4.1948
    in these circumstances. The ground of bona fide need of the landlord is
    to be decided on the basis of the evidence led which is entirely oral D
    from both the sides with reference to the infirmity, if any, in the High
    Court's finding permitting ·interference therewith in these appeals.
    Dr. Y.S. Chitale, learned counsel appearing for the appellant-tenant
    assailed the High Court's findings on both these questions. Shri
    S. Ghosh, learned counsel appearing for the sub-tenant adopted the
    arguments of Dr. Cb.itale. Shri Chidambaram, learned counsel appear- E
    ing on behalf of the respondent No. I landlord has urged that there is
    no infirmity in the High Court's decision on both the questions to
    permit any interference in these appeals.

r         We shall first take up the question relating to the landlord's
    reasonable and bona fide requirement which is a ground for eviction          F
    under clause {h) of th.e proviso to sub-section 1 of Section 21 of the
    Act. It may be recalled that the Trial Court had negatived the exis-
    tence of this ground while the High Court reversing that conclusion
    has held it to be proved. The question before us is whether there is any
    infirmity in the High Court's reversal of this finding justifying
    interference in these appeals. Against the decision of the Trial Court,      G
    the provision made in Section 50 of the Act is of a revision and not an
    appeal to the High Court. However, the power of revision is not
    narrow as in s. 115 CPC but wider requiring the High Court to
    examine the impugned order 'for the ·purpose of satisfying itself as to
    the legality or correctness of such order or proceeding' which enables
    the High Court to 'pass such order in reference thereto as_it thinks fit'.   H
    256         SUPREME COURT REPORTS                [1990] Supp. 2 S.C.R.

    It is dear that the High Court in a revision under Section 50 of the Act
A   is required to satisfy itself not only as to the legality of the impugned
    order or proceeding but also of its correctness. The power of the High
    Court, therefore, extends to correcting not merely errors of law but
    also errors of fact. In other words, the High Court in a revision under
    Section SO of the Act is required to examine the correctness of not onJy
    findings on questions of law but also on questions of fact. It is signifi-
B
    cant that the revision provided is directly against the Trial Court's
    order and not after a provision of appeal on facts. All the same; the
    power in revision u·nder Section 50 of the Act cannot be equated with
    the power of the. Appellate Court under Section 107(2) of the Code of
    Civil Procedure which is the same as that of the original court; and the
    revisional power under Section 50 of the Act even though wide as
c   indicated, must fall short of the Appellate Court's power of interfe-
    rence with a finding of fact where the finding of fact depends on the
    credibility of witnesses, there being a conflict of oral evidence of the
    parties.

          It has, therefore, to be seen whether the High Court in the present
D
    case while reversing the Trial Court's finding on the question of land-
    lord's Tf'.:asonable and bone fide requirement of the suit premises
    exceeded its jurisdiction. Admittedly, the only evidenc led by the land-
    lord for this purpose is oral comprising of the testimony of PW. I
    Dinesh, the Power of Attorney holder of the landlord and son of one
    of the three ladies who were partners of that firm. The evidencee in
E   rebuttal is also oral comprising essentially of denial of the plaintiffs
    requirement.

          The credibility of the oral evidence adduced by the parties has to
    be assssed in the background of certain undisputed facts and circums-
    tances. It is undisputed that the respondent No. l firm comprising of
                                                                                 ,
F   three partners, all women, belonging to a family of businessmen having
    textile _business also was constituted in 1958 and the firm was regis-
    tered in 1961; the power of attorney was given to PW 1 Dinesh, son of
    one of the partners, on 4.9.1970; the suit premises was purchased by
    the respondent No. 1 firm in 1974; respondent No. I firm has its
    business in one room on the third floor in a rented premises in
G    Bangalore and it does not have any other premises for this purpose; and
    PW: I Dinesh is looking after the entire business of the respondent
    No. 1 firm as a duly constituted attorney. RW. 1 Thakurdas Bhool-
    chand, proprietor of M/s. Bhoolchand Chandiram also admitted that
    the children of the ladies who were partners of the respondent No. I
    firm are carrying on the business and that business is being carried on
H
           BHOOLCHAND v. K.P.C. INVESTMENTS [VERMA, J.]               257

in a premise at Sakalji Market, Avenue Raod, Bangalore which accord-
                                                                             A
ing to respondent No. I is a rented accommodation. RW. I has merely
denied knowledge of the premises being taken on rent by respondent
No. I. The question, therefore, is whether on these undisputed facts
and circumstances the Jandlord·s reasonable and bona fide need has
been proved.
                                                                             B
       The Trial Court in deciding against the landlord was influenced
considerably by the fact that in support of the landlord's case 'no piece
of documentary evidence is produced'. The Trial Court accepted that
the family of the respondent No. I carries· on textile business but held
it not proved that partition in the family has taken place to give rise to
the requirement of respondent No. I firm for the suit premises when
the joint family owns other premises in Bangalore. According to the          c
Trial Court, the respondent No. I firm is not a separate entity
detached from the family. The Trial Court was obviously in error in
being influenced by the absence of any documentary evidence to sup-
port the need set up by respondent No. I. There is no finding recorded
by the Trial Court of the existence of any document which was mate-          D
rial for deciding the question and it being in possession of the respon-
dent No. I had not been produced at the trial. In the absence of any
such finding, the effect of non-production of any documentary evi-
dence being put in scales against the landlord resulted in an infirmity
permitting the High Court to examine the correctness of the finding
even when it was based on the credibility of the oral evidence adduced       E
by the parties. Similarly, the suit premises belonging, admittedly, to
the three ladies who were partners of the respondent No. I firm and to
no other member of the family to which those ladies belonged, the
premises, if any, belonging to other members of the family could not
be taken into account for assessing the reasonable and bona fide need
of the business of respondent No. I firm. Since the three ladies con-        F
stituting the respondent No. I firm come from a family having textile
business and for the purpose of the suit premises, they being distinct
fron1 other members of the family with their separate business in a
rented accommodation in the same city, the Trial Court's finding was
vitiated by another infirmity when it failed to examine the need set up
by respondent No. I firm in the correct perspective. The High Court          G
was, therefore, justified in re-examining the correctness of the finding
on this question correcting both these errors which had vitiated the
Trial Court's finding. These infirmities in the Trial Court's finding
clearly show that the weight of the Trial Court's finding of fact in the
present case was considerably reduced and the High Court in a revi-
sio.n under Section 50 of the Act was empowered to examine the cor-          H
    258         SUPREME COURT REPORTS                  [1990] Supp. 2 S.C.R.

    rectness of this finding after eliminating both the infirmities.
A
          It is obvious that the partners of the respondent No. 1 firm
    belonging to a family already having large textile business would not
    purchase the suit premises in a prestigious commercial locality at
    Bangalore merely for earning the monthly rent of Rs.325 after invest·
B   ing the amount of. Rs.1,40,000 in 1974 to acquire the business pre-
    mises. This factor indicating the greater probability also has to be put
    in scales while assessing the landlord's bona fide reqµirement set up in
    the present case. Viewed in this manner, the High Court's finding on
    this question based on the oral evidence adduced by the parties in the
    background of undisputed facts and circumstances of the case reaching
    the conclusion that the landlord's reasonable and bona fide require-
c   ment of the suit premises for its own occupation is proved does not
    suffer from any infirmity which can justify interference therewith in
    these appeals. This alone is sufficient to affirm the decree for eviction
    passed against the appellants in these appeals.

D          We shall now consider the other question relating to sub-letting
    which is a ground for eviction specified in clause (f) of the proviso to
    sub-section 1 of Section 21 of the Act. The basic point for decision is
    whether the sub-letting made by M/s. Bhoolchand Chandiram to M/s .
  . Super Dry Cleaners of one shop which is a part of the suit premises
    w .e.f. 1.4. 1948 was unlawful ·being contrary to any provision of law
E then in force. Considerable argument was advanced from both sides
    relating to the law then in force. We may here indicate that existence
    of the ground of sub-letting loses much of its significance on our above
    conclusion that the landlord's reasonable and bona fide need was
    rightly held proved by the High Court with the consequence that the
    decree for eviction can be sustained on that ground alone. The ground
F of sub-letting, however, remains of practical significance only for the
    purpose of applicability of sub-section 4 of Section 21 of the Act since
    that would be attracted only if the ground of sub-letting also found
    proved by the High Court, is not upheld herein. If, however, this
    ground also is upheld, then the decree being passed even on this
    ground, the further question of greater hardship to the landlord or the
G tenant under Section 21(4) of the Act would not arise. It is for this
    reason that we consider it necessary to examine the question of sub-
    letting.

          The main controversy between the two sides on the ground of
    sub-letting is whether a written consent of the landloTd for sub-letting
H   was necessary on 1.4.1948 when the sub-letting was made and, if so,         f
                    BHOOLCHAND v. K.P.C. INVESTMENTS !VERMA, J.)                259

          was there such a written consent giyen by the landlord? The written
·'                                                                                     A
          consent of the landlord on which reliance is placed by the tenant as
          well as the sub-tenant, the appellants in these appeals, is that con-
          tained in the above quoted letter datd 4. 10.1943 of the original lessor.
          Unless the written consent of the landlord contained in the above
          letter dated 4.10.1943 can be held to be subsisting on 1.4.1948 when
          the sub-letting was made in favour of M/s. Super Dry Cleaners, there         B
          would, admittedly, be no written consent of the landlord to this sub-
          letting. There is no controversy in this respect.

                The first point for consideration, therefore, is whether the written
          consent of the landlord contained in the above quoted letter dated
          4.10.1943 can be treated as subsisting and available on 1.4.1948 when
          the subletting in question was, in fact, made. There is no case set up       c
          by the tenant and sub-tenant of any implied consent of the original
'         lessor or waiver of the ground of sub-letting and, therefore, that
          question does not arise for consideration.

                The written consent of the landlord for sub-letting on 1.4.1948 D
          according to learned counsel for the appellants is to be found in the
          letter dated 4.10.1943 of the original lessor. The consent of the land-
          lord for sub-letting is a question of fact. Such consent is an act of
          volition of the landlord and is not to be inferred from any statutory
          provision. The effect of .the statute comes in, if at all, only for the
          purpose of ascertaining whether the landlord's consent can be treated E
          as subsisting after lapse of the period for which it was expressly given.
          There being no compulsion on the landlord to give such consent it
          cannot ordinarily extend beyond the period for which alone it was
          expressly given. Admittedly, the consent which was given by the origi- .
          nal lessor in the present case is to be found only in the s~id letter dated
          4.10.1943. We must, therefore, see the consent given therein.               F

                The aforesaid letter dated 4.10.1943 of the original lessor con-
          firming the creation of the tenancy with effect from 4. 10.1943 stated
          that two shops were let out on a monthly rent of Rs.430 for two years
          with the option cif sub-letting one of the shops; and the house adjoin-
          ing the shops was let out on a monthly rent ·of Rs.50 for eleven months      G
          with the option of sub-letting the house also. There is no dispute that
          subsequently in a proceeding for fixation of the standard rent, the
          entire premises comprising of the two shops and the houses, was
          treate.d as one premises and the monthly rent of Rs.325 was fixed for
          the entire premises and this is how the tenancy was treated by both
          sides as one tenancy instead of two separate tenancies appearing in the      H
     .J



I
     260         SUPREME COURT REPORTS                [ 1990] Supp. 2 S.C.R.

     letter dated 4. 10.1943. The letter dated 4.10. 1943 created contractual
                                                                                  ·-
A
     tenancy for a period of two years in respect of the two shops and for a
     period of eleven! months for the adjoining houses. Obviously, the
     consent of the landlord for sub-letting mentioned therein by giving the
     tenant the option of sub-letting cannot, therefore, be construed as
     consem for a period beyond the period of the contractual tenancy
A    which was only two years in respect of two shops. It would neither be
     reasonable nor appropriate to construe that the consent was given for
     any period after expiry of the period of contractual tenancy specified
     therein. There is nothing in the said letter dated 4. I0.1943 to suggest
     the continuance of the tenancy after the expiry of the specified period
     of contractual tenancy and, therefore, there could be no occasion to
     contemplate any consent for sub-letting after expiry of the period of
c    contractual _tenancy of two years in respect of the two shops. This is the
     factual position emerging from the aforesaid letter dated 4.10.1943
     which alone is the basis of appellant's assertion that sub-letting w.e.f.
                                                                                  r
      1.4. 1948 was with the written consent of the original lessor. Admit-
     tedly, creation of the sub-tenancy w.e.f. 1.4. 1948 in respect of one of
[l   these shops was Jong after the expiry of the period of contractual
     tenancy of two years specifically mentioned in that letter. The ques-
     tion, therefore, is: whether the landlord's consent given in the said
     letter dated 4. 10. 1943 could be treated as subsisting for creation of a
     valid sub-tenancy w .e.f. 1.4. 1948 after the expiry of the period of
     contractual tenancy?
E
           The argument of Dr. Chitale, learned counsel for the appellant-
     tenant, which has also been adopted by Shri Ghosh, learned counsel
     for the appellant sub-tenant is that on expiry of the contractual
     tenancy, the tenant became a statutory tenant by virtue of the restric-
     tion on his eviction except on one of the grounds for eviction provided
F    in the statute and, therefore, all the terms and conditions of the con-
     tractual tenancy became the terms and conditions of the statutory
     tenancy. On this basis, it was argued that the written consent of the
     landlord for sub-letting during the period of the contractual tenancy
     continued to subsist as one of the terms and conditions of the statutory
     tenancy also. It was argued that for this reason, even though the sub-
G    letting was made w.e.f. 1.4.1948 after the period of the contractual
     tenancy, yet it too must be deemed to be with the written consent of          r
     the landlord which was available during the period of the contractual        t
     tenancy. Dr. Chitale also referred to the fact that the first sub-letting
     in 1946 to Arts Palace of the same shop which was later sublet w.e.f.
      1.4.1948 to M/s Super Dry Cleaners was also after expiry of the period
H    of two years of the contractual tenancy. This fact, however, is not
          BHOOLCHAND v. K.P.C. INVESTMENTS [VERMA, J.[               261


material in the present case since the first sub-letting ended before
                                                                            A
commencement of the second sub-letting on 1.4.1948 and it is only the
validity of the subsisting sub-letting w.e.f. 1.4.1948 which is in ques-
tion in the present proceedings. Dr. Chit<Jle relied on a number of
decisions of this court in supprot of his contention that the written
consent of the landlord ior sub-letting during the period of contractual
tenancy continued as one of the terms and conditions of the statutory       B
tenancy when the sub-letting was made w.e.f. 1.4.1948. In reply, Shri
Chidambram contended that the written consent of the landlord for
sub-letting is not one of the terms which enures to the benefit of the
tenant during subsistence of the statutory tenancy after expiry of the
contractual tenancy. The decisions cited at the Bar on this point are
Damadi/al and Others v. Parashram and Others, [1976] Supp. SCR
645; Y. Dhanapa/ Chettiar v. Yesodai Ammal, [1980] l SCR 334; Smt.
                                                                            c
Gian Devi Anand v. Jeevan &mar and Others, [1985] Supp. l SCR 1;
Mahabir Prasad Verma v. Dr. Surinder Kaur, [1982] 3 SCR 607; M/s.
Shalimar Tar Products Ltd. v. H.C. sharma and Others, [1988] 1 SCC
70; Shanti/al Rampuria and Others v. Mis Vega Trading Corporation
and Others, [ 1989] 3 SCC 552; M/s. Bajaj Auto Limited v. Behari Lal        D
Kohli, [1989] 4 SCC 39; Duli Chand (Dead) by L.rs. v. Jagmender
Dass, [1990] l SCC 169 and Tara Chand andAnotherv. Ram Prasad,
I 199013 sec 526.
      The decision in Damadi/al's case (supra) and others in the sall)e
line related primarily to the question of heritable interest in the pre'    E
mises of the legal representatives of the deceased tenant who was in
occupation as statutory tenant. Pointing out that the concept of statu-
tory tenancy under the English Rent Acts and under Indian Statutes
like the one with which we are concerned rests on different founda-
tions, it was held that the statutory tenant had a heritable interest in
the premises which was not merely a personal interest but an interest       F
in the estate like that of a contractual tenant. On this conclusion, the
right of legal representatives of the statutory tenant to protect the
possession and prosecute the appeal against eviction order was upheld.
The main question for decision in Damadilal's case (supra) was the
heritable nature of the statutory tenancy and it-was in this context that
the terms anci conditions of a statutory tenancy were held to be the        G
same as those of the contractual tenancy preceding it, No question
arose in Damadilal's case (supra) of the right of a statutory tenant to
create a sub-tenancy after replacement of the contractual tenancy with
the statutory -tenancy. The observations made and the decision
rendered in Damadilal's case (supra) cannot, therefore, be construed
as holding that a statutory tenant has a right to create a sub-tenancy      H
    262         SUPREME COURT REPORTS                [1990] Supp. 2 S.C.R.

    during subsistence of statutory ten~ncy after expiry of the contractual
A   tenancy when the Rent Acts give the same protection against eviction
    to the tenant except on one or more of the specified grounds. Obvioulsy,
    the protection to the statutory tenant and the heritable nature of the
    statutory tenancy providing the same protection against eviction to the
    tenant's heirs does not further require conferral of the right of induct-
B   ing a sub-tenant which is not necessary for enjoyment of the tenancy
    and the protection against eviction given by the Rent Acts. There is no
    rationale for inferring or extending the landlord's written consent for
    sub-letting beyond the period of contractual tenancy for which alone it
    is given. No separate discussion of the later decisions in the same line
    is necessary because of the same distinction in all of them.

c         One decision which. requires specific mention and is obviously
    nearest on facts to the present case is Mahabir Prasad Verma v. Dr.
    Surinder Kaur, [ 1982] 3 SCR 607. In that case, the contractual tenancy
    was for a period of one month from 1.4.1974 to 30.4.1974 with the
    landlord's consent for sub-letting. The tenant continued to occupy the
D   premises even after expiry of the contractual tenancy on 30.4.1974 and
    inducted therein a sub-tenant. The landlord sued for eviction of the
    tenant on the ground of unlawful sub-letting of the premises which was
    a ground for eviction under the relevant Rent Act. There was some
    dispute about the time of induction of the sub-tenant, it being claimed
    by the tenant that the induction of the sub-tenant was in the month of
E   April, 1974 during subsistence of the contractual tenancy while the
    landlord contended that the sub-letting was after the month of April,
     1974. It was found as a fact that the tenant had sublet in the month of
    April, 1974 when the written consent of the landlord subsisted and not
    subsequent to it in May as claimed by the landlord. The crux of the
    question for decision therein was stated thus:
F
                "The crux of the question, therefore, is whether the 'ublet-
                ting by the tenant with the written consent of landlord dur-
                ing the currency of the tenancy becomes unlawful and
                illegal on the determination of the tenancy and fiirnishes a
                ground for eviction within the meaning of S. 13(2)(ii)(e) of
G               the Act."

    On the finding that the sub-tenant had been inducted during the period
    of contractual tenancy on the basis of the written consent for subletting
    given by the landlord, the sub-letting did not become unlawful merely
    because the contractual tenancy of the tenant came to an end and the
H   protection against eviction to the tenant as a statutory tenant also
           BHOOLCHAND v. K.P.C. INVESTJl,IENTS [VERMA, J.]            263

enured to the benefit of the lawful sub-tenant recognised by the            A
statute. It was held as under:

            "Subletting lawfully done with the written consent of the
            landlord does not become unlawful merely on the ground
            that the contractual tenancy has come to an end.. Subletting
            to constitute a valid ground for eviction must be without       B
            the consent in writing of the landlord at the time when the
            tenant sub-lets any portion to the sub-tenant.

                   A subletting by the tenant with the consent in writing
            of the landlord does not become unlawful on the expiry of
            the contractual tenancy of the tenant, unless there is any
            fresh sub-letting by the tenant without the written consent of C
            the landlord. Mere continuance in possessi<;n of a sub-tenant
            lawfully inducted does not amount to any fresh or further
            sub-letting. We are, therefore, satisfied that in the instant
            case the tenant has not sub-let any portion without the
            written consent of the landlady after the commencement of D
            the Act ..... Mere continuance of possession by the sub-
            tenants lawfully inducted by the tenant with the written
            consent of the landlady contained in rent note does not
            afford any ground to the landlady for eviction of the tenant
            on the ground of sub'letting, as the tenant has not sub-let
            after the commencement of the Act any portion without the E
            consent in writing of the landlady."
                                                     (emphasis supplied)

Of all the decisions cited at the Bar, this decision is, admittedly,
nearest on facts to the present case with the only difference that the
sub-letting in the present case was after expiry of the contractual         F
tenancy and after the commencement of the Act prohibiting sub-
letting without the written consent of the landlord when it was made
on 1.4.1948, while the sub-letting in Mahabir Prasad's case (supra) was
during the period of contractual tenancy when the express written
consent of the landlord for sub-letting was available. The principle for
application, however, is the same with the only difference in the result    G
since in Mahabir Prasad's case (supra) the sub-letting was made during
subsistence of the _contractual tenancy with the written consent of the
landlord. It is significant that the judgment in Mahabir Prasad's case
(supra) was by A.N. Sen, J. who also wrote the opinion in Gian Devi's
case (supra) relied on by Dr Chitale as one of the decisions in line with
Damadilal's case (supra). It is clear that A.N. Sen, J., who wrote t~
    264         SUPREME COURT REPORTS                [1990] Supp. 2 S.C.R.

    opinion .of the Bench in Mahabir Prasad's case (supra) as well as m
A
    Gum Devi's case (supra) did not construe the earlier decisions starting
    with Damadi/a/'s case (supra) in the manner read by Dr. Chitale. lf
    Dr. Chitale is correct in his submission on this point, then the entire
    emphasis in Mahabir Prasad's case (supra) on the sub-letting being
    made during the period of contractual tenancy in April, 1974 and not
B   thereafter being decisive of the validity of sub-letting was misplaced
    and a futile exercise. In our opinion this was not so and the correct
    premise is that landlord's written consent for sub-letting during the
    period of contractual tenancy cannot be construed as his consent sub-
    sisting after expiry of the contractual tenancy. The submission of
    learned counsel for the appellants runs counter to the clear decision in
    Mahabir Prasad's case (supra) which, in our opinion, is in no way
c   contrary to the decisions starting with Damadila/'s case (supra). the
    observations wherein are in the context of heritability of the statutory
    tenancy. In fact. it is rightly not even contended by Dr. Chitale that
    the decision in Mahabir Prasad's case (supra) runs counter to Damadi·
    /a/'s case Supra and other decisions following them. This is sufficient to
D   indiCate that the appellants' contention is untenable.

          There is some controversy between the parties about the legisla-
    tive history of the Rent Acts in the Bangalore Civil Station wherein the
    suit premises is located, but an in-depth consideration of that con-
    troversy is not necessary. The only question is: whether on 1.4.1948
E   when the sub-letting was made in favour of M/s. Super Dry Cleaners.
    the contractual tenancy giving written consent for sub-letting having·
    expired was the written consent of the landlord for sub-letting neces-
    sary under the statute then in force? It is sufficient to state that the
    Bangalore House Rent and Accommodation Control Act, 1946 was
    brought into force w.e.f. 1.10.1946 for a period of two years expiring
F   on I. 10.1948. Later enactments were Mysore House Rent and Accom-
    modation Control Act, 1951 and then Karnataka Rent Control Act,
     1961 w .e.f. 31.12.1961. The suit for eviction was filed in September,
     1975 on the grounds contained in clauses (f) and (h) of the proviso to
    sub-section 1 of Section 21 of the Karnataka Rent Control Act, 1961.
    In the Bangalore House Rent and Accommodation Control Act, 1946
G   which applied at the time of Sl)b-letting in the present case on 1.4.1948
    the provision for evictioin of tenants was made in Section 9 thereof.
    Sub-section 2 specifies the grounds on which a landlord was entitled to
    seek eviction of his tenant. One such ground in Sub-section 2 is of
    sub-letting and the relevant portion reads as under:

H               "(iii) that the tenant has after the commencement of this
    •
                   BHOOLCHAND v. K.P.C. INVESTMENTS [VERM.A, J.J               265

                    Law without the written consent of this landlord-                 A

                    (a) sub-let the entire building or any portion thereof: or
                           "

               It is, therefore, clear that the written consent of the landlord for
        sub-letting was necessary under the relevant statute applicable on            B
         1.4.1948 when the sub-letting was made in the present case. In fact.
        this requirement of written consent of the landlord was the basis on
        which both sides argued the case and the main thrust of Dr. Chitale's
        argument was that such a written consent was to be found in the letter
        dated 4. 10.1943 of the original lessor. We have, earlier, indicated that
        the landlord's consent in the aforesaid letter dated 4. I0.1943 was not       c
        available on 1.4.1948 after expiry of the contractual tenancy. The rest
        is only a logical corollary to this conclusion leading to the inevitable
        result that induction of the sub-tenant M/s. Super Dry Cleaners w.e.f.
         1.4.1948 by the tenant M/s. Bhoolchand Chandiram was unlawful
        being made contrary to the provision of law then in force which consti-
        tutes the ground for eviction contained in clause (f) of Sub-section 1of      D
        Section 21 of the Karnataka Rent Control Act, 1961. There is, thus, no
        ground to differ with the conclusion reached by the High Court that
        the ground of sub-letting has been made out, even though our reasons
)       are different.

              On the above conclusion that _the ground of sub-letting also was        E
        rightly held proved by the High Court in addition to the ground of
        landlord's reasonable and bona fide requirement, the question of
        applicability of Sub-section 4 of Section 21 of the Karnataka Rent
        Control Act, 1961 does not arise and, therefore, it is not necessry to
        examine the question of comparative hardship. In that view of the
        matter, the appeals must fail.                                                F

               Consequently, both the appeals are dismissed. In view of the fact
        that the appellants are carrying on their business in the suit premises
        for a long time and will, therefore, need some reasonable time to shift
        to some other place, we grant to the appellants time till 31.3.1991 for
        vacating the suit premises and delivering '!3cant possession thereof to       G
        the landlord respondent No. 1, subject to undertaking in the usual
        terms being filed by the appellants within a period of four weeks. No
        costs.

        Y. Lal                                                Appeals dismissed.
                                                                                      H