SHINGHAL, J. -
(1.)THIS second appeal arises from the appellate judgment and decree of the District Judge of Jaipur City dated May 17, 1962 because of the dismissal of the plaintiffs' suit for eviction.
(2.)THERE is a temple of Thakurji Shri Dwarkadheeshji in Jaipur City. The defendant took four shops of that temple on rent, when it was under the management of the state government, on a rent of Rs. 150/- per mensem, and thereafter he took the other two shops on a rent of Rs. 65/- per mensem. Devendra Prasad was appointed as the "adhikari" of the temple in November 1949 Verandahs were added to all the six shops in 1953 and a consolidated rent of Rs. 251/8/- per mensem was fixed for them from that time. It was pleaded in the plaint that the shops were let for the period ended July 31, 1957 and that the defendant sub-let all of them for unlawful gain. It was also pleaded that the defendant did not pay the rent after September 30. 1957, in spite of notice. Further, it was pleaded that the shops were required for the personal, reasonable and bonafide use of Devendra Prasad. On all these grounds the present suit was raised on February 28,1958, for eviction and recovery of arrears of rent.
Defendant Gappulal admitted that Devendra Prasad was appointed as the manager of the temple in November, 1949 and was entrusted with the work of looking after it and realising the rent, but he pleaded that the tenancy in respect of the four shops was older and that those shops were sub-let from an earlier date within the knowledge of the Dharmarth Department. It was denied that the period of the tenancy expired on July 31, 1957. As regards the other two shops, it was pleaded that they were also on rent with the defendant from an earlier date and that he had paid the rent thereof to the Dharmarth Department up to December 19, 1949 and thereafter to Devendra Prasad. Further, it was pleaded that these two shops were being utilised by the defendant for his own business under the supervision of his brother-in-law. The claim for eviction on the ground of Devendra Prasad's personal requirement was denied and it was pleaded that there was no default in the payment of rent because Devendra Prasad had refused to accept it. The defendant however admitted that the rent was increased to Rs. 251/8/- for all the six shops in 1953. It was further pleaded that no notice was given on behalf of the Devasthan Department, or the Government of Rajasthan, or Thakurji Shri Dwarkadheeshji and the defendant could not be evicted until his tenancy was terminated according to the law. The notice given by Devendra Prasad was insufficient because he had no right to give it and it did not expire with the end of the month of the tenancy. Lastly, it was pleaded that as the manager of the plaintiff had taken the rent up to September 30, 1957, it was not correct to say that the tenancy had come to an end on July 31, 1957.
A number of issues were framed by the trial court, which held that while the four shops were let out to the defendant in 1944, the two shops were let in 1945. The claim for arrears of rent was decreed but the suit was dismissed as regards the prayer for the eviction of the defendant. An appeal was preferred to the District Judge and as it has been dismissed by the impugned judgment, this second appeal has been filed by the plaintiff as aforesaid.
It has been argued by Mr. Rastogi that the impugned judgment has been vitiated because the learned Judge of the lower appellate court fell into an error in holding that as the shops had been sub-let by the defendant even before the commencement of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter referred to as the Act, it was not possible to invoke sec. 13 of the Act for evicting the defendant on the ground of the sub-letting of the premises. As I shall presently show, there is force in this argument of the learned counsel and as the finding of the lower appellate court has been vitiated by a substantial error of law, it is necessary for me to decide the matter afresh.
As has been stated, the claim in the plaint was that all the six shops were sub-let without the permission of the landlord. Mr. Rastogi has, however, not challenged the finding of the two courts below that the four shops, which had initially been let out to the defendant, were sub-let by him with the consent of the landlord. But he has strenuously argued that this was not so in the case of the remaining two shops and that they were, on the other hand, sub-let without the consent or permission of the landlord. It appears that this argument is correct and must be upheld.
The reason is that while the defendant pleaded in the written statement that when he took the four shops on rent in 1944 they were sub-let to others from that very time within the knowledge of the Dharmarth Department which compromised the dispute and agreed to accept the rent of Rs. 150/- per month, no such plea was taken regarding the other two shops. In fact it was emphatically stated in the written statement that the defendant carried on his own business in those two shops under the supervision of his brother-in-law. Even in his own statement in the trial court the defendant did not state that he had taken the consent or permission of the landlord to] sub-let the two shops. On the other hand he stated that he opened his own shop in those premises in 1946. He had however to admit that he removed his shop towards the end of 1947 when his brother-in-law, started working there. The defendant's brother-in-law Ramgopal D. W. 5 has however stated that he started his own business in the two suit shops some 12 or 13 years ago because the defendant gave them to him on a rent of Rs. 65/-, which was raised to Rs. 69/-per mensem. Further, Ramgopal has clearly stated that he was himself the owner of the business which was carried on in the two shops, that he alone was responsible for the profit and loss of that business and that the defendant had nothing to do with it. It is therefore quite clear that the defendant sub-let the two shops in question to his brother in-law Ramgopal D. W. 5. The defendant is a business-man and if it had been a fact that he was carrying on his own business in the two shops, he could easily produce his books of account to substantiate that contention. The fact however remains that he did not produce his books of account even though he admitted that he maintained them. No explanation has been given for withholding the books. It is therefore reasonable to draw the inference that if they were produced they would not have supported the defendant's case, as has been held in Jagprasad Rai vs. Mt. Singari (l ). In all these facts and circumstances I have no hesitation in holding that the two shops in question were sub-let by the defendant towards the end of 1947 without the permission of the landlord.
It is not disputed that the Jaipur Rent Control Order, 1947, came into force on October 15, 1947, and was in force at the time when the two shops were sub-let by the defendant without the consent of the landlord. Clause 8 (1) (b) (11) of that Order provided for the eviction of a tenant in such circumstances on the ground that he had, without the consent of the landlord, sub-let the whole or a part of the premises. And it is not disputed that this liability to eviction continued to subsist under sec. 13 (l) (e) of the Act after its promulgation by virtue of sec. 6 of the Rajasthan General Classes Act; 1955 read with sec. 31 of the Act.
It will be recalled that it is the case of both the parties that verandahs were constructed in front of the six shops in 1953 and then a consolidated rent of Rs. 251/8/- was fixed for them. It was an inseparable rent, so that there was a single integrated tenancy in respect of all the six shops from 1953 on wards. So when it has been held that the defendant had sub-let two of the shops which formed part of the premises which were let out to him on the consolidated rent of Rs. 251/8/-, it is obvious that the defendant was liable to eviction under sec. 13 (l) (e) of the Act and the learned Judge of the lower appellate court erred in taking a contrary view.
It has however been argued by Mr. Bhargava that Devendra Prasad had no authority to give notice Ex. 1 to the defendant on June 28, 1957. This was the subject-matter of issue No. 6 and the burden of proving that Devendra Prasad had no such authority was placed on the defendant. He did not make a grievance in any of the two courts below that the burden was wrongly placed, and no such grievance has been made in this Court. All the same, the fact remains that, as has been admitted by Mr. Bhargava, the defendant did not lead any evidence to prove the plea that Devendra Prasad had no authority to give the notice for his eviction, whereas Devandra Prasad stated that he had such an authority and his statement was not shaken by cross-examination.
I have looked into the notice and I find that it has been given by Devendra Prasad in his capacity as the "adhikari" of the temple of Shri Dwarkadheeshji. In such cases it is important to see what that notice really meant to the tenant who presumably is conversant with all the facts and circumstances of the tenancy, as has been held in Harihar Banerji vs. Ramshashi Roy (2) A perusal of the written statement shows that the defendant admitted that Devendra Prasad was appointed to be the manager of that temple in November 1949 with power to look after the temple and realise its income. It is therefore obvious that he was aware that Devendra Prasad was functioning as the manager of the property of the temple and had given the notice in that capacity. The defendant in fact gave a reply (Ex. 9) to that notice of Devendra Prasad and its contents go to show that he definitely considered him to be the person who had the authority to manage the temple. A perusal of Exs. 5, 6 and 9, which are the orders of the State Government, also shows that the properties of the temple, including the shops were entrusted to Devendra Prasad for management with authority to realise the rents. Devendra Prasad was therefore a person who had general authority on behalf of the temple and there is no reason why the notice by him, in that capacity, should not be held to be authorised. I am fortified in this view by the following observations in Foa's "general Law of Landlord & Tenant", eighth edition, pages 606-607.- "the general common law rule is that a notice to quit need not be signed by the lessor personally; it is sufficient if it is signed by his agent shown to be duly authorised in that behalf. If he acts under a special authority, he must give it in the name of the principal or expressly as agent on behalf of his principal; but if he acts under the authority incidental to a general agency to manage the demised property (e. g. where a cestui que trust is allowed by the trustees to have entire control of settled estates), he may give it in his own name. " (p. 606 ). . . . . . . . . . . . . . . .
The notice must be such as the tenant may act upon with safety, that is one which is in fact, and which the tenant has reason to believe to be, binding on the landlord. An agent to receive rents and to let, a receiver with a general power of letting appointed by the Court, and a steward of a corporation, such as a dean have been held to have such general authority; (p. 607 ). "
Reference may also be made to Jones vs. Phipps (3 ). In that case a farm was purchased by the trustees of G's marriage settlement and they left the entire management and control of the farm to G. He negotiated with the defendant as to the terms on which the tenancy was to continue, without mentioning the trustees. The defendant did not agree to the terms and G. in his own name as landlord, gave him notice to quit. The defendant disputed the validity of the notice, but it was held that the inference to be drawn was that the notice was with the sanction of the trustees, as it was incidental to such an authority as the trustees had delegated to G and that it was not necessary to the validity of a notice given by such a general agent that his agency should appear on the face of the document. Reference may also be made to Doe vs. Mizem 4 ). In that case Mizem was a tenant in possession. The steward of Earl Manvers had let the premises to Mizem from year to year and had given him the usual notice to quit. The steward stated that he was in the habit of letting Earl Manver's land, and receiving the rents, and that he succeeded a former steward who did the same, but no express authority was shown. It was objected that no authority to determine the tenancy was shown and that the right to the possession was still in the former tenant. It was held that an agent to receive rents and to let had the authority to determine the tenancy.
(3.)IT would thus appear that the test to determine the authority for the giving of a notice is whether the notice is such that the tenant may act upon it with safety or, in other words, that it is a notice which is binding on the landlord. In the present case, the landlord was the idol and since its "adhikari" gave the notice, there was no reason to take the view that it was an unauthorised notice, or that the idol was not bound by it. There is therefore no force in this argument also. In fact I find that issue No. 1 related to the question of the authority of Devendra Prasad to file the suit on behalf of the idol and even though that issue was decided in favour of the plaintiff, its correctness has not been challenged in this Court. IT must therefore be held that there is no substance in the argument that the notice was unauthorised.
The remaining argument which has been advanced by Mr. Bhargava is that notice Ex. 1 was waived because another notice was issued thereafter. I do not however find it possible to entertain this argument because it was not pleaded by the defendant that the notice had been waived within the meaning of sec. 113 of the Transfer of Property Act, and the parties did not join issue on the point. In fact no question was put to Devendra Prasad about the waiver of the notice and it cannot therefore be urged with any justification that by giving the second notice he had the intention to treat the lease as subsisting. There are two important facts which lead to this irresistible conclusion. Firstly, it has been held by the two courts below that the second notice (Ex. 3) did not reach the defendant, that it cannot be said that the defendant was at all aware of any such waiver so as to consent to it within the meaning of sec. 113 of the Transfer of Property Act, and, secondly, a perusal of the notice shows that it was really in the nature of a counter reply to the defendant's reply (Ex. 9) to notice Ex. 1 and it cannot be said that by sending the counter-reply the first notice had been waived. 15. As I have reached the conclusion, for reasons already stated, that the suit should have been decreed for the defendant's eviction from the six shops, the appeal is allowed with costs of all the courts. The impugned judgment and decree are set aside and a decree is passed for the eviction of the defendant from all the six shops covered by his tenancy. .