JAGAT NARAIN, J. - (1.) THIS purports to be a second appeal by one Kailashchandra against an order of the Civil Judge, Ganganagar, holding that a decree for ejectment obtained by Gomandram against the firm Rameshwardas Ram Gopal in respect of a shop was binding on him u/o. 21 R. 35 Code of Civil Procedure. THIS order was confirmed on appeal by the District Judge, Ganganagar.
(2.) GOMAND Ram let out the shop in dispute to the firm Rameshwardas Ram Gopal on I. 4. 57 for a period of one year. When it did not vacate the shop on the expiry of the period GOMAND Ram served a notice determining its tenancy and instituted a suit for ejectment on 27. 8. 59 on the ground that the tenant had sub-let the premises without his consent and on the ground that the tenant had neither paid rent nor tendered the amount due from it for more than 18 months. The tenant filed a written statement in which it admitted having sub-let the premises but alleged that it did so with the consent of the plaintiff. It was denied that rent was not tendered for any period. On the contrary it was asserted that it was regularly sent by money order, but that the plaintiff refused to accept. The tenant however expressed willingness to vacate the shop and a consent decree was passed against it. After the consent decree was passed half of the shop was vacated but the remaining half which was in possession of Kailash Chandra was not vacated. An execution application was filed by the decree-holder for the execution of the decree for eviction. On 5-12-59 he filed an application in which be alleged that Kailash Chandra had been let into possession by the judgment debtor and was liable to eviction under the decree. It may be mentioned here that in the plaint also it was alleged by the defendant that Kailash Chandra was one of the sub-tenants of the defendant. The court issued a notice to him to show cause why he should not be evicted in execution of the decree. Kailash Chandra then appeared and filed three objections on 20. 3. 60, 19. 3. 60 and 6. 4. 60 respectively in which it was alleged that he was a tenant of the decree-holder and was not liable to ejectment under the decree as he was not a party to it. The executing court fixed a date for the evidence of the parties. On that date Kailash Chandra did not produce any evidence to support the allegation which he had made in his objection. The case was argued out on the footing that Kailash Chandra was a sub-tenant. The trial court held that being a sub-tenant he was bound by the decree of ejectment passed against the tenant and ordered his eviction. This order was confirmed on appeal by the learned' District Judge. The contention on behalf of the appellant is that as a consent decree for the eviction of the tenant was passed the sub-tenant is not bound by it as there was no judicial determination as to the existence of any of the grounds mentioned in sec. 13 of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 (hereinafter referred to as the Act of 1950 ). It was held in Sailendra Nath v. Bajan Lal (a) that when the period of a lease expires or the lease is determined by proper notice to quit the sub-lease by the lessee comes to an end. It is not necessary for the lessor to serve a notice to quit on the sub-lessee as well. The same consequences arise when a forfeiture is incurred by the tenant unless he has fraudulently or collusively brought it about (vide sec. 115 Transfer of Property Act ). It was further held that the sub-lessee would be bound by a decree for possession obtained by the lessor against the lessee if the eviction is based upon a ground which determines the underlease also unless he succeeds in showing that the judgment was vitiated by fraud or that the lessee collusively suffered the decree to be passed against him. If, however, the decree for possession proceeds on a ground which does not by itself annual the sub-lease, the decree would not be binding on the sub-lessee, nor could the sub-lessee be evicted in execution of the decree if he had acquired a statutory right or protection which he could assert against the lessor. This decision was approved by their Lordships of the Supreme Court in Gurushiddasawami V. D. M. Jain Sabha (2 ). What has therefore to be determined is whether the appellant is not entitled to be evicted in the present case. Under sec. 3 (vii) of the Act of 1950 "tenant" means the person by whom rent is, or but for the contract express or implied would be, payable for any premises and includes any person holding or occupying the premises as a sub-tenant. Under sec. 13 of the same Act it is provided that no court shall pass any decree or make any order in favour of a landlord, whether in execution of a decree or otherwise evicting a tenant, so long as he is ready and willing to pay rent therefor to the full extent allowed by it unless it is satisfied that the grounds mentioned in clauses (a) to (1) of sub-sec. (1) exist. It is contended on behalf of the appellant that the expression "tenant" used in sec. 3 includes a sub-tenant and therefore the protection under sec. 13 is available to him unless it can be shown; that any of the grounds (a) to (1) exist so far as he is concerned. This contention has no force in my opinion. All that the definition given in sec. 3 implies is that a sub-tenant will be deemed to be a tenant in relation to his landlord namely the tenant in chief to whom rent is payable by him. This is further made clear by a reference to the definition of "landlord" given in sec. 3. It is defined to mean any person who for the time being is receiving or is entitled to receive the rent of any premises and includes a tenant in relation to a sub-tenant. The protection given to a tenant against a landlord under the Act is therefore available to a sub-tenant against his landlord namely the tenant in chief. It is only in a suit brought by the tenant in chief to eject his sub-tenant that he has to show that one of the grounds mentioned in sec. 13 exists. The next contention is that under sec. 13 before a decree for eviction can be executed the decree-holder has to show that it is based on one of the grounds mentioned in clauses (a) to (1) of sub-sec. (1) of sec. 13. This matter came up for consideration before a learned Single Judge of this Court in Roop Ram Vs. Mohan Lal (3 ). It was held in that case that the words "in execution of a decree" occurring in sub-sec. (1) of sec. 13 refer to decrees passed before the commencement of the Act of 1950. Apart from that decision the principle of constructive res judicata is applicable in a case in which the decree has been passed under the Act. It is implicit in the decree even though it was passed with the consent of the tenant that it was based on one of the grounds mentioned under the Act. A reference was made to the decision in Jagjiwan Singh Vs. Sitaram (4) on behalf of the appellant. That case is distinguishable as the decree there was passed before the commencement of the Act of 1950. It was passed under the Mawar House Rent Control Act 1949 under sec. 11 (d) of which it was open to the court to pass a decree for ejectment of the tenant for any reason which the court might consider sufficient. There is another aspect of the matter. Sec. 13 (1) provides that it is only against a tenant who is ready and willing to pay rent that the court has to be satisfied of the existence of the grounds mentioned in clauses (a) to (1) of sub-section (1 ). If a tenant by consent gets a decree for eviction passed against him he cannot be regarded as being ready and willing to pay rent of the premises.
(3.) THE appellant is thus not entitled to any protection under the Act of 1950. Coming now to the provisions of sec. 115 of the Transfer of Property Act although it was alleged by the appellant in one of his objections that the eviction decree was obtained by collusion and fraud no particulars of it were given in the application. Nor was any evidence produced in support of it. The learned counsel for the appellant drew my attention to his application dated 6. 4. 60 in which it was prayed that the law points arising in the case may be decided before the evidence of the parties was recorded. This application does not appear to have been pressed. It appears from the order-sheet dated 6. 4. 60 that the appellant did not want to produce any oral evidence and wanted the case to be disposed of on the documentary evidence furnished by him on that date. Thereafter the case was argued on the footing that the appellant was in possession as a sub-tenant of the firm Rameshwardass Ram Gopal against which a decree for eviction was passed. No case is thus made out in favour of the appellant even under sec. 115 of the Transfer of Property Act. It may be mentioned here that under the Act of 1950 sub-letting of premises without the permission of the landlord is a ground of eviction under sec. 13 (1 ). Before the appellant could claim any right to remain in possession of the premisses after the ejectment decree it was up to him to satisfy the executing court that he had been let into possession as a sub-tenant with the permission of the landlord. In the present case he has not produced any evidence to prove this fact. ;