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1975 Supreme(P&H) 88
PUNJAB & HARYANA HIGH COURT
R.S.Narula, J.
Banarsi Dass
Versus
Faqir Chand
Civil Revision No. 1417 of 1971,
Decided On : JULY 9, 1975
The expression "written consent" in a lease agreement includes both prior and subsequent consent, and thus a tenant's subletting of the premises with the written consent of the landlord, even after the subletting has occurred, does not constitute a ground for eviction.
Headnote:
EAST PUNJAB URBAN RENT RESTRICTION ACT, 1949 - SECTION 13(2)(II)(A), 13(2)(II)(B) - LEASE - CONSTRUCTION - SUBLETTING - CONSENT - WRITTEN CONSENT - INTERPRETATION - USER OF PREMISES - MISUSER - RENT - PAYMENT - LANDLORD - DEFINITION.
Fact of the Case:
Tenant Banarsi Dass was granted a 15-year lease of an open plot of land by Kishore Chand in 1950. After Kishore Chand's death in 1964, his son Parkash Chand executed a fresh one-year lease in favor of Banarsi Dass in 1965. The tenancy continued even after the expiry of this lease, with rent being paid to Parkash Chand. In 1967, Faqir Chand and his sisters, along with Parkash Chand and Prem Chand, filed an application for Banarsi Dass's eviction on grounds of subletting, misuse of the land, and non-payment of rent. The Rent Controller dismissed the application, but the Appellate Authority allowed the eviction on all three grounds.
Finding of the Court:
The High Court found that the payment of rent to Parkash Chand, one of the heirs of the original landlord, absolved the tenant of his liability to pay rent. The Court also held that the construction of shops on the rented land did not amount to a misuse of the premises, as the lease agreement allowed for the construction of a factory or a kutcha or pukka shop. Furthermore, the Court interpreted the expression "written consent" in the lease agreement to include both prior and subsequent consent, and thus the tenant's subletting of the shops was not a ground for eviction.
Issues: 1. Whether the payment of rent to one of the heirs of the original landlord absolved the tenant of his liability to pay rent? 2. Whether the construction of shops on the rented land amounted to a misuse of the premises? 3. Whether the expression "written consent" in the lease agreement included both prior and subsequent consent?
Ratio Decidendi: 1. The definition of "landlord" in Section 2(c) of the East Punjab Urban Rent Restriction Act, 1949 includes any person entitled to receive rent, including heirs of the original landlord. Therefore, payment of rent to Parkash Chand, one of the heirs of the original landlord, absolved the tenant of his liability to pay rent. 2. The lease agreement allowed for the construction of a factory or a kutcha or pukka shop. The construction of shops, therefore, did not amount to a misuse of the premises. 3. The expression "written consent" in the lease agreement was not qualified with the word "prior." Therefore, the tenant's subletting of the shops with the written consent of the landlord, even after the subletting had occurred, did not constitute a ground for eviction.
Final Decision: The High Court allowed the revision petition, set aside the order of the Appellate Authority, and dismissed the application for eviction without any order as to costs.
1. An open site of land forming part of a bigger plot known as braham sarai belonged to one Kishore Chand who let it out to Banarsi Dass petitioner on 17.07.1950, for a period of 15 years ending 16.07.1965, by means of a written lease-deed Exhibit A-2. Kishore Chand died in 1964 leaving behind him two daughters, two sons namely Faqir Chand and Parkash Chand, and a grandson namely Prem Chand son of Telu Ram. After the expiry of the period of the original lease-deed, a fresh lease-deed was executed by Parkash Chand son of Kishore Chand in favour of the petitioner for a period of one year on 27.07.1965. This is Exhibit R.1. The tenancy was, however, continued even after the expiry of the period covered by the lease-deed Exhibit R.1 as the rent for two subsequent years was received by Parkash Chand against two separate receipts. He received rent for another year in advance on 16.07.1966, vide receipt Exhibit R.2, and for the third year in advance by the receipt, dated 23.07.1967 Exhibit R.3. Before the expiry of the period covered by the receipt Exhibit R.3, Faqir Chand and his two sisters filed an application for the ejectment of the petitioner from the land in question on October 28, 1967. Later on Parkash Chand and Prem Chand the only other heirs of Kishore Chand were also joined as parties to the petition for ejectment. Eviction of the petitioner was sought on three grounds, namely that of (i) sub-letting without the written consent of the landlord; (ii) using the rented land for a purpose other than that for which it was leased; and (iii) on account of non-payment of rent with effect from 17.07.1965, i. e. for the entire period subsequent to the period of the lease-deed Exhibit A.2.
2. By his judgment, dated 26.11.1968, the Rent Controller recorded findings against the landlord-respondents on all the three grounds, and dismissed the application for eviction of the petitioner. The appeal of the landlord-respondents, was, however, allowed by the judgment, dated 10.12.1971, of Shri Raghbir Singh, the Appellate Authority. He allowed the eviction of the petitioner on all the three grounds. He held that all the five heirs of Kishore Chand were the landlords of the present petitioner in respect of the demised premises and payment of rent to one of them was not enough, and, therefore, the petitioner was guilty of non-payment of rent. It is the common case of the parties that the petitioner did not make any factory building on the rented land, but made five shops which were let out by him to different persons who have been impleaded as respondents in the present proceedings. It was held by the Appellate Authority that sine no written consent for letting out the shops to those persons had been obtained, he was liable to ejectment on the ground of subletting. The eviction was also allowed for using the rented land for a purpose other than that mentioned in the lease-deed on the finding that in accordance with the terms of the original lease-deed Exhibit A-2, the petitioner took the land for constructing a factory building and one shop either kutcha or pukka, and that inasmuch as no factory building had been constructed and five shops had been made, the rented land had been misused.
3. Aggrieved by the order of the Appellate Authority, the petitioner filed the present revision petition in this Court. When this case came up for hearing before P.C. Pandit, J. (as he then was) on 1.09.1972, the learned Judge found that though eviction had been allowed on the ground of perversion of user of the rented land, no issue had been framed on that point, and, therefore, the petitioner had been prejudiced in the trial of this case on that point. The learned Judge therefore, ordered that the issue of preversion of user may be tried by the Rent Controller after giving the parties a reasonable opportunity, and that his report should be submitted to this Court through the Appellate Authority who may also record his finding thereon. In pursuance o
