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TMI Blog1987 (11) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... ng or parting of possession by the appellant-tenant in favour of R.C. Abrol Company Pvt. Ltd., and 3. If there was such sub-letting, it had been made with the written consent of the landlord so was not actionable. The Rent Control Tribunal confirmed the findings against the appellant in all the three contentions and the High Court also affirmed the findings of the Rent Control Tribunal. We must note that no contention was raised before us as far as point No. 1, namely notice was not served. The only contention before us was that there was no sub-letting or parting of the possession by the appellant-tenant in favour of R.C. Abrol Company Pvt. Ltd. and secondly it was urged that if there was sub-letting that had been made with the written consent of the landlord. The Clause 14 of the lease deed in the instant case which provides, inter alia, the terms and conditions is as follows:- Clause 14-That the lessee undertakes not to sub- let the premises to any other party without the written permission of the lessor, and that the lessee's contractors M/s R.C. Abrol Co. will share the premises with the permission of the lessor. This is in consonance also with provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egional Properties Ltd. v. Frankenschwerth, [1951] 1 All ER 178. Clearly the clause in the case relied upon could not be a consent of this kind. It is true that Justice R.S. Bachawat had expressed the view that the consent could be general or special but in the case before the Court there was no conduct which showed that there was consent by the general words of the clause in the deed. We are of the opinion on reading of the different provisions that the consent enjoined by bargain between the parties in this case must be in writing and must be to the specific sub-letting. That was the view of the Delhi High Court in Raja Ram Goyal v. Ashok Kumar and others, [1975] All India Rent Control Journal 534. In Kartar Singh v. Shri Vijay Kumar and Another, [1978] All India Rent Conrol Journal 264 the High Court of Punjab Haryana has also expressed similar view. In the case of M/s Delhi Vanaspati Syndicate, Delhi v. M/s Bhagwan Dass Faqir Chand, (A.I.R. 1972 Delhi 17) Khanna, C.J. as he then was of the Delhi High Court observed at page 19 of the report: Section 16 of the Act of 1958 holds the key to the interpretation of provisions of Clause (b) of sub-section (1) of Section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenant to obtain the consent in writing to sub-letting the premises. The mere permission or acquiescence will not do. The consent must be to the specific sub-letting and must be in writing. Indeed there was no implied permission also here. Our attention was drawn to the fact that the landlord had written letter to the tenant and the landlord objected to the sub-letting, the moment he realised the situation. In that view of the matter we are clearly of the opinion that in this case there was no consent in writing on the part of landlord to such sub-letting. Dr. Shankar Ghosh tried to state that in view of the fact that the key of the premises was stated to be in the custody of the tenant, there was no sub-letting. It was the mere user, it was urged. It is difficult to accept this contention. The case of sub-letting was accepted as has been found by all the Courts in this case. Our attention was drawn to the certain observations on the question of directory/mandatory nature of the requirement that consent should be in writing. Reliance was placed on the observations of Craies on Statute Law 7th Edition 261 wherein in the election case requirement that ballot paper had to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinct legal entity. It appears in this case that the company was composed of the different persons. The High Court noted that there was never any consent in writing of the landlord to sub-letting the premises to the incorporated company. The permission must have been in writing and specific in the words of Justice Sarkar in South Asia Industries Private Ltd. v. Sarup Singh and others, (Supra). In the case of Mehta Jagjivan Vanechand v. Doshi Vanechand, (A.I.R. 1972 Gujarat 6), Justice Thakkar as he then was of the Gujarat High Court observed at page 8 of the report: A similar question was raised before the Madras High Court in Gundalpalli Rangamannar Chetty v. Desu Rangiah, AIR 1954 Madras 182. A reference was made to Jackson v. Simons, [1923] 1 Ch. 373, and the distinction drawn between physical possession and legal possession in that decision was taken into account in rejecting the contention of the landlord that there was a subletting or assignment. It has been observed by the Madras High Court in paragraph (5) of the said decision as under:- In `Jackson v. Simons' [1923] 1 Ch. 373(B) the question was whether the tenant broke a similar covenant. The defendant who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent continued to be the lessee, though in regard to the business carried on in the premises he had taken in other partners. The partners are not given any exclusive possession of the premises or a part thereof. The first respondent continues to be in possession subject to the liability to pay rent to his landlord. The partnership deed also, as I have already stated, does not confer any such right in the premises on the other partners. I, therefore, hold in the circumstances of the case the first respondent did not sublet the premises to the second respondent, and therefore he is not liable to be evicted under the provisions of Act No. 25 of 1949. The view taken by me is reinforced by the opinion expressed by the Madras High Court in the aforesaid decision. A similar view has also been taken by Saurashtra High Court in Karsandas Ramji v. Karsanji Kalyanji, AIR 1953 Sau. 113 at pp. 114 115. In my opinion, it is therefore clear that there has been no assignment or subletting in favour of the partners of the firm by the tenant so as to attract the Bar of s. 13(1)(e) of the Rent Act. The view taken by the lower Courts is correct and no exception can be taken thereto. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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