J.C.VERMA, J. - (1.) DOUBTING the view taken in the judgment of Hon'ble Lodha, J. in Kewal Ram v. Mangu Mal, 1974 Raj LW 165 : (AIR 1974 Raj 201), Hon'ble the Chief Justice vide a reference order dated 18.8.1994 (wrongly written as 18.7.1994) has referred the matter to be decided by a Larger Bench for determining legal propositions, emerging from the facts in the present revision petition and for application of law in the given situation of the case in hand.
(2.) TO enumerate the facts, it shall be necessary to give certain facts of the present case. The petitioner Bal Kishan is the tenant of the premises in question. The non-petitioner is subtenant, which subtenancy had been created by the tenant. Admittedly the landlord of the premises in question is one "Sarvjnik Sampati Trust." The dispute in the present revision petition is in regard to sub lease between the tenant and subtenant only. The subtenant is said to have committed default of payment of rent to the tenant for a period from 1.1.81 to 31.12.82. The monthly rent is said to be Rs. 150/- p.m. In addition to recovery of rent, the plaintiff-tenant had also sought the eviction from the premises in question of the respondent/non-petitioner. The respondent/non-petitioner had admitted the sub tenancy, but had tried to defend himself on number of pleas i.e. (i) the plaintiff himself was a tenant at a lesser rate (ii) he subletted the premises to respondent at a higher rent (iii) it was also alleged that the landlord had also filed suit for eviction against his tenant-petitioner on 30.3.83 (iv) and the very important plea taken by the subtenant was that he had attorned in favour of "Sarvjnik Sampati Trust" w.e.f. 1.4.83 by executing a rent note and, "therefore, he was no more a tenant or subtenant to the petitioner tenant and not liable to be evicted from the demised shop. He pleaded further that the petitioner tenant can only recover rent upto 31st March, 1983 for the reason that so-called sub tenant respondent has already attorned in favour of original landlord. The suit was tried by the learned Civil Judge, Bhilwara who vide his order dated 25.7.85 directed the subtenant to pay the rent from 1.1.81 to 25.7.85 i.e. upto the date of order totalling Rs. 9,200/- within a period of fifteen days from the date of order. This order dated 25.7.85 was challenged by the subtenant in appeal and the Addl. Distt. Judge, Bhilwara vide his order dated 14.5.92 upset the order dt. 25.7.85 passed by Civil Judge, Bhilwara by upholding that tenant was entitled to the rent only from 1.1.81 to 31.3.83 for the reason that subtenant had directly attorned in favour of landlord vide a deed dated 1.4.83 and the subtenant was no more a subtenant of the original tenant and he by his attornment had become a tenant of the landlord himself. This judgment, when tenancy right of a tenant has been taken away by the so- called attornment by subtenant in favour of landlord, became the subject- matter of present civil revision petition. When the revision petition came up for final hearing. Hon'ble the Chief Justice dated 18.8.94 referred the matter to the Larger Bench. Order of Hon'ble the Chief Justice dated 18.8.94 is reproduced as under: "The petitioner is a tenant and respondent is a subtenant. The tenant sought eviction of subtenant by filing a suit under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter to be referred as 'the Act') on the ground of default in payment of rent for more than the requisite period. The trial Court determined the arrears of rent and directed the subtenant to pay the amount by a certain date. That order was challenged by the subtenant by filing appeal and the District Court has allowed the appeal and the District Court has allowed the appeal and set aside the order determining rent on the ground that the suit for ejectment is not maintainable as the subtenant has attorned to the landlord. In coming to this conclusion, reliance was placed on the judgment of Lodha, J. in Kewal Ram v. Mangu Mal, 1974 Raj LW 165 : (AIR 1974 Raj 201). This is revision by the tenant against the said order. 2. I have carefully gone through the decision of Lodha, J. I have not been able to subscribe to the view taken by him that as the landlord and a subtenant agreed, tenant would cease to be the tenant of the premises merely because subtenant wants to attorn to the landlord. The 'tenant' means the person by whom or on whose account or behalf rent is or, but for a contract express or implied would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of the Act. Therefore, the tenant includes the person against whom a decree is obtained otherwise than by a decree of eviction under the Act and despite that he continues he is considered as a tenant. 3. It is also settled upto the Supreme Court that if a landlord obtained an order of ejectment under the Act on the basis of a compromise or award without establishing the ground of ejectment under the Act, such decree or award is void and is not executable. For certain other reasons also, I am of the view that the compromise or agreement between the landlord and subtenant will not deprive the legal status of tenant to seek the possession of the premises in accordance with law. There is hardly and discussion in the judgment of Lodha, J. The impression left is that proper arguments were not raised and legal propositions were not considered. 4. In fairness, it would not be proper for me to disagree with Lodha, J. and render a judgment in favour of the tenant. Accordingly, I adopt the course of referring the matter to the larger Bench so that the legal propositions may be determined. To be listed before the regular Division Bench in the Month of Sept. 1994".
(3.) VERY important question which arises in the present case is whether a subtenant, who has been inducted either with the consent of original landlord or without the consent of such landlord, can straightway attorn his sub- tenancy in favour of original landlord and thus depriving the tenant who has got a statutory status under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short as 'Rent Act'), and has certain rights and obligations, can be bye-passed by such compromise between the subtenant and original landlord or by connivance of subtenant with the original landlord to defeat the statutory protection of the tenant. It is true, if the subtenancy has been created without the consent of landlord, there are some disabilities attributed to the original tenant and the landlord can always file the eviction petition on the ground that premises in question has been let-out to subtenant without his consent. But at the same time, subtenancy can be created by a tenant with the consent of the landlord and in such situation the landlord is not authorised to seek eviction of the tenant on the ground of sub-letting, if the subtenancy is with the consent of landlord. In either of the situation, the remedy lies before the prescribed Court under the Rent Act to get the rights determined viz. a viz. the landlord and the tenant. It will not be wrong to say in legal fiction that tenant who has created the subtenancy is deemed to be a landlord viz a viz the subtenant. Whether the subtenancy is authorised or non-authorised, the subtenant derives his little, status, rights and obligations from the tenant. He has no direct link with the original landlord. The tenant in chief is the landlord in this very restricted sense qua his subtenant. This has been so held in Natraja v. Bal Subramanium,1957(2) Mad LJ 492 and The Public Prosecutor v. A. J. Gladestone, (1963) 2 Andh WR 388.;