A tenant is not liable to eviction under section 14 (1) (b) of the Delhi Rent Control Act, 1958, for subletting the premises, if the sub-tenant has vacated the premises before the service of notice of termination of tenancy and the filing of the eviction petition.

( 1 ) THIS is an appeal against the order of the Rent Control Tribunal dated July 29, 1972.

( 2 ) THESE are the facts. On March 19, 1969, the respondent landlord brought a petition for the eviction of the tenant appellant. The sole ground of eviction was that the tenant had sublet, assigned or parted with the possession of the premises to one Bhagwan Das respondent No. 2 without the written consent of the landlord after the commencement of the Delhi Rent Control Act, 1958 (the Act ).

( 3 ) THE Rent Controller dismissed the petition on the ground that the cause of action did not subsist on March 19, 1969 when the eviction petition was filed as the sub-tenant had vacated the premises in February 1967. Consequently, the Controller held that the landlord was not entitled to claim eviction.

( 4 ) THE landlord appealed to the Tribunal. The Tribunal took a view different from the Controler, It passed an order of eviction in favour of the landlord on the ground that once subletting had taken place the tenant was liable to eviction. In its view it did not matter that the sub tenancy had ceased to exist long before the filing of the eviction petition. The Tribunal followed a division bench decision of this court in Battoo Mal v. Rameshwar Dass, in preference to a single brench ruling in Ved Prakash v. Chum Lal, where a contrary view had been taken.

( 5 ) THE tenant now appeals to this court under section 39 of the Act.

( 6 ) THE facts in this case are reasonably clear. The landlord let the shop in dispute to the tenant on a montly rent of20. 00 on August 21, 1965. The defendant sublet the premises to Bhagwan Dass in October, 1 "66. This is the finding of the Controller as well as the Tribunal. It is based on the report of the head clerk dated January 14, 1967 which was made to the Competent Authority when the landlord applied for permission to file eviction case against the tenant.

( 7 ) THE Competent Authority granted permission on November 28, 1967 under section 19 of the Slum Areas (Improvement and Clearance) Act 1956. Thereafter, the landlord served a notice dated December 1, 1967 on the tenant terminating his tenancy. This was a notice under section 106 of the Transfer of Property Act. He thereafter filed the eviction petition on March 19, 1969, as I have said.

( 8 ) BEFORE the rent control authorities, it was not disputed that Bhagwan Dass, the sub tenant, vacated the shop in January/february, 1967. When the landlord served the notice and brought the petition the subtenant was not in occupation of the premises Even then the tenant has been ordered to be evicted by the Tribunal, Is that right ?

( 9 ) THE crucial fact in the case is that on March 19, 1969, when the eviction petition was filed, the subtenant had vacated the premises. He was not there even when the notice of termination of tenancy dated December 1, 1967 was served. The sub-tenant had, in fact, been removed in January/february, 1967. For what the tenant did in the period between October, 1966 to February, 1967 he has been ordered to be evicted. This is the sum and substance of the whole case. 10. Clause (b) of the proviso to section 14 (1) of the Act reads

" (B) that the tenant has, on or after the 9th day of June, 1972, sublet assigned or otherwise parted with possession of the whole or any part of the premises without obtaining the consent in writing of the landlord. "

( 10 ) THE basic issue in the appeal is : If before the date of the service of notice determining the tenancy of the tenant, the sub-tenant vacates the premises will the Court even then pass an order of eviction against the tenant on the ground of clause (b) ?

( 11 ) THE counsel for the tenant has referred me to two cases. One is Ved Parkash v. Chuni Lal. The other is my own decision in Gian Singh v. Tarlok Singh. In Gian Singh s case I have had occasion to consider the import of word has as used in clause (h) of the proviso to section 14 (1) of the Act. There I took the view that if th