Hidayatullah, J. - (1.) The appellants (in this appeal by special leave) are the sons of one Gauri Shankar, who owned a bungalow known as 5. Halley Road, New Delhi. This bungalow was given to the respondent by Gauri Shankar on a monthly rent of Rs. 234-6-0. excluding taxes. The suit, out of which this appeal arises, was brought by the appellants against the respondent, Rao Girdhari Lal Chowdhury, for his eviction on the ground (among others) that he had sub-let a portion of the bungalow after the commencement of the Delhi and Ajmer Rent Control Act, 1952 (38 of 1952)to one, Dr. Mohani Jain, without obtaining the consent in writing of the landlord as required by S. 13 (1) (b) (i) of the Act. The defence was that the original contract of tenancy was entered into sometime in 1940 and a term in the contract gave the tenant a right to sub-let. It was alleged that a letter written by the tenant which embodied the terms of the tenancy, was in the possession of the landlord and a demand was made for its production. The case of the tenant was that the sub-tenancy commenced in the year 1951, that is to say, before the passing of the Act of 1952, and the tenant was not required to obtain the written consent of the landlord to sub- let. Admittedly, in this case. no written consent was proved. We need not mention the other allegations and counter-allegations which are usual in proceedings between landlords and tenants, the most important of them being about the arrears of rent, which the tenant under permission of the Court ultimately deposited in Court.
(2.) The issue on which the decisions below have differed was framed by the Sub-Judge, First Class, Delhi, in the following terms: "Did the plaintiff consent to the subletting of parts of the demised premises by the defendant If so, when and to what effect - The trial Judge found that there was no evidence that the landlord was ever consulted before a portion of the bungalow was sub-let to Dr. Mohani Jain, and further that the sub-tenancy was created after June, 9, 1952, the date on which the Act came into force. In reaching the latter conclusion, the trial Judge made a reference to a dispute between the tenant and Dr. Mohani Jain for fixation of standard rent before the Rent Control authorities. In those proceedings, Dr. Mohani Jain had alleged that she was living as a sub-tenant from the end of 1951, but the tenant had denied this fact. The proceedings before the Rent Control authorities ended in a compromise, but the admission of the tenant was relied upon to support the conclusion that the sub- tenancy commenced after the Act. The trial Judge decreed the suit. The decision of the trial Judge was confirmed on appeal by the Additional District Judge Delhi. Though Dr. Mahani Jain gave oral evidence in this case that her sub-tenancy commenced in December 1951, the Additional District Judge found categorically that the sub-tenancy commenced sometime after the coming into force of the Act. He held that even if Dr. Mohani Jain was living there even from before it was as guest and not as a sub-tenant.
(3.) Against the order of the Additional District Judge, a revision was filed under s. 35 (1) of the Act. That section reads as follows: "The High Court may, at any time, call for the record of any case under this Act for the purpose of satisfying itself that a decision made therein is according to law and may pass such order in relation there to as it thinks fit." Acting in accordance with a decision of the Punjab High Court as to the ambit of this section, the learned single Judge, who heard the revision application, thought that it was competent for him to reconsider the concurrent finding about the time when the sub-tenancy commenced. He held that Dr. Mohani Jain's statement showed that the sub-tenancy commenced prior to the passing of the act, and that the landlord's consent in writing was not necessary. In reaching this conclusion, the learned Judge was of opinion that all the evidence was not considered by the two Courts below, and that he was entitled, in view of the interpretation placed upon the section above quoted, to go into the matter afresh, and decide the question of fact.;