(1.) THIS is an appeal by a tenant Kikabhai against whom there is a decree for ejectment as well as for arrears of rent and mesne profits. The ejectment has been sought from an open piece of land. Its old Municipal no. 1 was divided into different numbers as 34, 35, 36, 37 and 38. The land in tenancy measures 1586" towards North; 156 towards South; 849" towards East and 286" towards the West. The tenanted portion also included a guest house with a compound and motor garage measuring 783 square feet in area. The portion actually in occupation of the defendant as a tenant has been shown in the map Ex. P/9 bounded by red-lines and marked as A and B.

(2.) THE plaintiffs allege that the defendant was a tenant of the premises before 1-7-1950. But at that time the portion in his occupation was much more than the present portion in suit. On 30-6-1950 the defendant surrendered all other portions excepting the suit portion for which the defendant agreed to pay rent Rs. 205 per month, The lease was for a period often years. The lease deed was executed and registered on 28 9-1930. After that the defendant surrendered some more portion and the rent was therefore reduced to Rs. 190 per month.

(3.) THE plaintiffs further allege that the premises were taken by the defendant for the purpose of running a foundry and for no other purpose. The guest house which forms part of the tenancy has been in a dangerous condition and unsuitable for residence. That the defendant had sub-leased the portions of the suit land. That the suit land was being used for the purpose different from that for which it was let out. The plaintiffs also wanted the land for constructing their own house. After giving a notice and determining the tenancy the plaintiffs brought a suit for ejectment. The plaintiffs claimed mesne profits at the rate of Rs. 1,800 per month from the date of determination of the tenancy till the date of recovery of possession.

(4.) THE defendant in reply contended that the tenancy started from 1-10-1950 and not from 1-7-1950. Therefore the notice determining the tenancy was not valid. While denying the claim of the plaintiffs, he contended that he is not liable to be ejected for any of the grounds claimed by the plaintiffs. It was averred that from the very beginning there had been subtenants in the suit premises in consequence of which the defendant was entitled to sub-let the same. There was a waiver on behalf of the plaintiffs about the sub-letting and therefore there was an implied consent in this respect. He denied that the plaintiffs are entitled to any mesne profits and in any case not at the rate claimed by them. According to him after the determination of the tenancy on 30-9- 1960 a new tenancy came into existence by operation of law and as the plaintiffs had not determined that tenancy, the defendant is not liable to be ejected.

(5.) A number of issues were framed. The trial Court held that the defendant shall give possession of the suit land to the plaintiffs within a period of 3 months from 30-4-1963. The defendants shall pay a sum of Rs. 10,820 as damages for use and occupation for a period from 1-7-1960 upto the date of decree after allowing deduction of Rs. 4. 850 received by the plaintiffs from the defendant, subject to plaintiffs paying court-fee on a sum of Rs. 2,820. The trial Court further held that the plaintiffs shall get damages after the date of decree at Rs. 455 per month till the date of recovery of the suit land.

(6.) AGAINST the above decree the defendant-has now come up in appeal. The plaintiffs have filed cross objection claiming mesne profits at the rate of rs. 1,800 per month.

(7.) BEFORE us the learned counsel for the appellant has not challenged the findings of the trial Court on some of the issues. He did not challenge the partition between the members of the joint Hindu family of late Dr. Narayan-rao as a result of which the suit land fell to the shares of the plaintiffs. He also did not dispute the dimensions of the land nor about the fixed period of ten years of lease deed commencing from 1-7-1950. The notice which was challenged to be invalid in the trial Court has not been challenged before us. He however challenged the grounds for which the plaintiffs are entitled to eject the defendant. He also challenged the quantum of mesne profits. According to him the plaintiffs are not at all entitled to mesne profits as after the determination of the tenancy the defendant continued to remains a statutory tenant with all the rights of a tenant. He therefore cannot be liable to pay any mesne profits.

(8.) WE may also mention certain other facts which are necessary for the sequence of events. It was on 28-9-1950 that the lease-deed was executed for a period of ten years in respect of the premises much more than the one in the suit. Subsequently a portion was surrendered, which we have already mentioned. The original lease was in favour of Dr. Narayanrao Palshikar. On 27-5-1954 there was a partition in the family and the suit houses in question fell to the share of the plaintiffs. The lease expired on 30-6-1960. On 26-12-1959 notice to quit the premises was given. These are all undisputed facts.

(9.) THE plaintiffs have claimed ejectment on the grounds we have already mentioned. As the suit was filed on 17-11-1960, both the parties admitted that they are governed by the Accommodation Control Act of 1955. From the grounds mentioned in the suit, the plaintiff sought ejectment under section 4 (m), 4 (1), 4 (d) and 4 (a) of the Act. The plaintiffs have also averred that after the expiry of the lease on 1-7-1960 till the date of filing the suit, the defendant had recovered from the tenants Rs. 1,800 per month. The said amount they claimed as mesne profits upto the date of the suit. They also claimed mesne profits at the same rate after the decree. The claim however of the mesne profits in the suit has been made for Rs. 8,000 only after giving up Rs. 160.

(10.) IN appeal the findings on some of the issues only have been challenged. The findings challenged are on issues Nos. 6, 7, 8 (9-10-15), 11 and 14. Issues 9, 10 and 15 have been taken up together by the trial Judge as well as by the appellant. For the sake of convenience we will discuss them in the same order.

(11.) ISSUE No. 6 is as follows :-

"whether the disputed premises other than the guest house and a room adjacent to it is open land and whether plaintiffs require it to built their own separate houses as stated in para 10 (a) of the Plaint"

(12.) THE plaintiffs have claimed the premises as open land. This has been challenged. It has been submitted that the entire land claimed is not open land. From Ex. P. 19 which is the lease deed, it is clear that the premises have been described as open land except that it has not a garage and a room adjoining it and a foundry in the part of the land. From P/19 it is clear that the premises have been described to be open land where ever relevant. There is no doubt that at the time when the suit was filed the land was not so open and it contained different structures though temporary. We will discuss about the propriety of having a construction in spite of the agreement when the occasion arises. For the present the question is whether the premises have to be considered for the purpose of the suit as open land.

(13.) THIS has got relevancy too ; the argument of the learned counsel for the appellant who has led stress on the words used in section 4 (i) of the Act which says "in the case of accommodation which is open land, that the landlord requires it for building his house on it". It has been argued looking to the wordings of the above provision that a suit for ejectment on the ground for constructing house on the open land would not lie, if on the date when the suit is filed the land is not an open land.

(14.) RELIANCE was placed on the decision of this Court in Mohammad v. Babushah (Second Appeal No. 544 of 1960 decided by Newaskar J on 7-12-1962.). In reference to section 4 (i) of the M. P. Accommodation Control act of 1955 Newaskar J. has observed-

"it is clear from the terms of this provision that in order to attract the same it is necessary that the accommodation should be open land when the suit is filed. Where the land is already built upon and there is nothing to show that it had been so built without the knowledge of the landlord or forcibly the landlord cannot avail himself of that provision in order to claim eviction of the tenant. "

(15.) APART from the fact that the lease that was granted in the case decided by Newaskar J. was in respect of a plot which had already been built and therefore the case is not applicable to the facts of instant case, the decision of the Supreme Court reported in Krhhnappasuba Rao v. Dattatraya (AIR 1966 SC 1024 [LQ/SC/1965/248] .) gives a contrary view and we are bound by that decision. Their Lordships of the supreme Court were dealing with a case almost on all fours with the present case. Their Lordships proceeded on the basis that when the lease is of open land it is immaterial whether the tenant built on it subsequently. Their lordships have observed :-

"on a plain reading of the lease it is clear that the subject-matter of the letting was open land and the rent was payable in respect of the open land only and not in respect of the structures raised by defendant No. 1. It is a question of construction of building lease, whether the lease is a demise of the land only, or whether it is a demise of the land together with the building to be constructed by the tenant. "

(16.) THE crucial question is what was let out. It is true that the premises under appeal had some building construction. But at the same time if we read Ex. P. 19, it is clear that the lease was granted of the open land with some temporary constructions used for the foundry. The appellant was allowed only to have some construction in connection with the foundry. As regards Guest House and Garrage, the reason for ejectment is different. At present we are only concerned with the open land that was let out.

(17.) THE plaintiffs wanted to build on the portion of the open land. We have seen that the ejectment has been sought on various grounds mentioned in section 4 (m), (i) (d) and (e). We are repeating the grounds because in case the land is held to be not an open land but a land which has got a residential house viz. guest house and buildings appurtenant to it, ejectment has been sought on the grounds given in section 4 (m) i. e.

"the accommodation has become unsuitable and unsafe for human residence or it is required for carrying out repairs which cannot be carried out without the eviction of the tenant. "

(18.) IN this respect the issue that has been framed is issue No. 7 which reads as follows:-

"whether the guest house and the room on the eastern side of the guest house are unsafe to human residence as stated in para 10 (b) of the plaint "

(19.) BEFORE discussing this issue we will discuss evidence regarding Issue no. 6. There is ample evidence that the plaintiffs wanted to build on the open portion of the land which cannot be challenged. The plaintiffs said that they want to build on the open land. The Court has accepted the same. It cannot be disputed that in respect it is the word of the landlord that must prima facie be accepted. Plaintiff besides himself has produced Municipal plan which has been sanctioned. We fully agree with the trial Court that the intention of the landlord has only to be established. If that is established the landlord can claim ejectment of the open land under section 4 (i) of the Act.

(20.) NOW regarding issue No. 7 which we have already quoted, if the premises is not taken to be an open land as it has garrage and guest house, then also the landlord is entitled to claim ejectment on the ground that the construction has become dilapidated and unsafe for human habitation. In this connection witnesses have been examined. P. W. 3 Madhav is a photographer. He has taken photos Ex. P. 2, P. 3 and P. 4 showing the condition of the house. P. W. 4 Shivram has stated that the house is in a dilapidated condition. There is notice from the Municipal Committee saying that the condition of the house was dangerous and required demolition.

(21.) IT was argued that this notice should not be looked into as such notices could be obtained at any time. We are afraid, this is too general an argument. Notice has been produced in original. Signatory to the notice has been examined. He has testified to the signature. He was an Assistant engineer who signed on behalf of the Commissioner. If the defendant thought that the notice was not a genuine one he could have sent for the file, as now suggested by the learned counsel for the appellant. The document has to be proved by the person who had issued it. We therefore do not think that ex. P. 13 can be excluded as not proved. P. W. 10 Digambar is a municipal overseer. He also testified to the dilapidateness of the house. P. W. 11 the plaintiff Nilkanth has stated on oath about the condition of the house. With the evidence discussed above the trial Court was right in holding that the building was in a dilapidated condition and required demolition which could not be done without the tenant vacating the same.

(22.) ANOTHER ground on which ejectment has been sought is included in issue No. 8 which is as follows :-

"whether the defendant has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodations as stated in para 10 (d)of the plaint "

In this connection the learned counsel for the appellant vehemently argued that at the time when the premises were let out there were already tenants and if some construction has been made it is not inconsistent with the purpose for which the defendant was admitted to the tenancy. It is therefore necessary to read what were the terms of contract as given in Ex. P 19. Clause No. 3 of the contract says that the land which has been taken on lease can only be used for the purpose of foundry or in connection with foundry and if any shed has to be built it should be built with the permission of the Municipality. Clause 12 says that if any act is done against the provisions of the contract, the landlords will be entitle to eject him.

(23.) IT is an admitted position that there had been constructions made for the purpose other than foundry. There is no dispute that the foundry is not in existence. It was closed down some time in 1956. The structures were built and they were let out to several persons. There is no dispute that these sub-tenants are not doing any business in connection with foundry. When there is a specific mention in the agreement that the premises can be used for a specific purpose, the tenant will be liable to be ejected if he uses it for a purpose different from what is mentioned in the agreement.

(24.) IN Ramnath v. F. Badridas (AIR 195i Pun 435.) the premises were let out for manufacturing buttons but they were used for manufacturing thread balls. Kapur J. has held that

"the conversion of the user from the manufacturing of buttons to the business of thread balls is in my opinion a misuser which is covered by section 9 (I) (b) (i) of the Delhi and Ajmer Marwara Rent Control Act of 1947 which is in pari Materia with S. 4 (d) of the Accommodation Control Act of 1955".

We, therefore, decide issue No. 8 against the defendant-appellant.

(25.) THE next points for discussion are issues regarding mesne profits. Though these issues should have come later on after discussion of other points, but as they were discussed by the trial Court and taken up by the appellants counsel after issue No. 8 we are also following the same sequence.

(26.) REGARDING mesne profits there have been three issues Nos. 9, 10 and 16. They read as follows:

"issue No. 9: -Whether the defendant is realising about Bs 1200/- per month issue No. 10:-Whether plaintiffs are entitled to get Rs. 1600/- perm as mesne profits issue No. 15:-Whether on the disputed land and in erecting constructions thereon the defendant has by now invested about Rs. 50,000/- "

(27.) REGARDING issue No. 9 there is an admission of the defendant himself that he is realising a rent of Rs. 1100/ per month from his sub-tenants. In the absence of any evidence on behalf of the plaintiffs in this connection we accept this figure.

(28.) REGARDING issue No. 10 the contention of the plaintiffs is that they are being deprived of a monthly income of Rs. 1300/- which rent they could have fetched if they would have built houses on the land. It is too much problematic and too vague an argument and in the absence of any direct evidence, we cannot accept that the plaintiffs would be earning Rs. 1800/-per month.

(29.) THE defendant however stated that he had spent Rs. 50,000/- on the construction of the structures and therefore if there is any higher rent it was on account of his investment. It was therefore argued that while assessing mesne profits the defendant is entitled to deduct the said amount from the assessed profits.

(30.) THE plaintiffs have filed cross objection in respect of the mesne profits they have challenged the expenses of the defendant to be Rs. 50,000/ -. But looking to the nature of the structures and the rent the defendant is getting, the amount can roughly be estimated to be Rs. 50,000/ -. The trial Judge has relied on the testimony of Kikabhai in this connection. He has stated that he has been realising rent Rs. 1100/- per month but he had to pay house tax rs. 210/- per annum. He has also to pay insurance charges. His contention that he used to spend Rs. 1200/-per year on repairs is accepted. It is not necessary for us to go into the accounts as we are accepting that Rs. 50000/-have been spent by the defendant on construction at this stage subject to what we say in cross-objection.

(31.) THE question however is what would be the mesne profits. We will discuss the question whether the plaintiffs are entitled to mesne profits shortly. But assuming the plaintiff are entitled to it the figure Rs. 455/-is in no way wrong. The learned counsel for the plaintiffs suggested that this amount does not include Rs. 190/- which would be paid by the defendant as rent. We do not think this contention has any substance. The amount of mesne profits has been calculated as a whole taking into consideration that Rs. 50000/- have been spent by the tenant. The calculation regarding mesne profits can be made approximately and no mathematically accurate figure can be arrived. We therefore hold that the amount of Rs. 455/- as mesne profits decided by the trial Court cannot be in any way wrong.

(32.) NOW we will take the point whether the plaintiffs are entitled to mesne profits. The Chief argument in this connection is that after the determination of the tenancy the defendant became a statutory tenant and therefore the only amount that could be recovered from him is the amount of rent.

(33.) IN this connection reference has been made to certain cases. In Anand Ltd. v. Anandji (AIR 1965 SC 414 [LQ/SC/1963/213] .) their Lordships have observed-

"a person remaining in occupation of the premises let to him after the determination of or expiry of the period of tenancy is commonly though in law not accurately, called a statutory tenant. Such a person is not tenant at all, he has no estate or interest in the premises occupied by him He has merely the protection of the Statute in that he cannot be turned-out so long as he pays the standard rent and permitted increases if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal; it is not capable of being transferred or assigned and devolves on bis death only in the manner provided by the statute. The right of a leas see from a landlord on the other hand is an estate or interest in the premises and in the absence of a contract to the contrary is transferable and the premises may be sub-let by him. But with the determination of the lease, unless the tenant acquires the right of a tenant holding over by acceptance of rent or by his assent to his continuing in possession by the landlord the terms and conditions of the lease are extinguished and the rights of such person remaining in possession are governed by the statute alone. "

(Italics is ours)

(34.) IN the earlier decision in Gangadutt v. Kartikchandra (AIR 1961 SC 1067 [LQ/SC/1961/56] .) the observations of their Lordships is to the same effect : -

"occupation of premises by a tenant whose tenancy is determined is by virtue of the protection granted by the statute and not because of any right arising from the contract which is determined. The statute protects his possession so long as the conditions which justify a lessor in obtaining an order of eviction against him do not exist. Once the prohibition against the exercise of jurisdiction by the Court is removed, the right to obtain possession by the lessor under the ordinary law springs into action and the exercise of the lessors right to evict the tenant will not, unless the statute provides otherwise, be conditioned. "

(35.) THE argument that the tenant is not liable to pay anything as mesne profits has sprung from certain passage taken by the defendant from a decision of the Full Bench of this Court reported in Shamlal v. Umacharan (1960 MPLJ 1002.). Their Lordships have observed :

"a person whose tenancy has been determined but who continues to remain in possession of the tenanted premises without the assent of the landlord after the determination of the tenancy is a tenant for the purposes of the M P Accommodation Control act and is entitled to the benefit of sections 4 and 7 of the M P. Accommodation Control act 1955. "

(36.) WE are, afraid, we do not find in this decision of the Full Bench that after the tenant is ejected for reasons stated in section 4 of the Act of 1955 he is not liable to pay mesne profits or damages for the use and occupation after the determination of the tenancy. No doubt he is a tenant under the Accommodation Control Act, but if we look to the definition of the tenant, it means "a person by whom rent is payable or but for a contract express or implied would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant.

(37.) THE above definition does not say anything more than that the person who pays rent is a tenant. It was argued following the observations of the Full Bench that after the determination of the tenancy when the tenant could protect himself under the provisions of the Accommodation Control Act he is liable to pay rent and he is liable to pay rent as a tenant and not any mesne profits. But if we carefully read the observations of the Full Bench they have only stated that a tenant is entitled to protection under sections 4 and 17 and other sections of the Accommodation Control Act. But if he is not entitled to protection, the Full Bench has not stated that he could still be treated as a tenant. On the other hand the decision of the Supreme Court in Anand Ltd. v. Anandji (supra) says that the rights of such persons remaining in possession are governed by the statute alone. It is only so long as the tenant can protect himself under the Accommodation Control Act that he remains and continues to be a statutory tenant. Once he is out of that he is not entitled to such a protection. He cannot be considered to be a tenant and liable to pay only rent. He therefore cannot be claimed to be a tenant and liable to pay only the rent. "he is not a tenant at all. "

(38.) DEFINITION of a tenant as given in the Accommodation Control Act of 1955 has been relied on. It says :-

"tenant" means a person by whom rent is payable or but for a contract express or implied would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant. "

(39.) IT was argued that whether contractual or statutory he is a tenant and therefore is a person by whom what is payable is rent. This argument is an argument in circle. Apart from the fact that Anand Ltd. v. Anandji (supra)says "such a person is not a tenant at all" what we have to consider is whether as a "statutory tenant" which term has no legal basis or a tenant whose tenancy has been determined and who has been refused the protection of the Accommodation Control Act can still pay for his use and occupation the formal rent. The Full Bench of our High Court did not decide this question. In fact the following questions were referred to:-

"whether in a suit pending on the date of commencement of the M. P. Accommodation Control Act, 1955. a decree for eviction can be passed except on one or more of the grounds mentioned in section 4 (2) of the Act; whether decree for eviction obtained before 1st January 1959 can be executed against a tenant so long as the Act is in force except on any of the grounds mentioned in section 4; and whether a person whose tenancy has come to an end before the commencement of the Act is a tenant for the purposes of the Act and can claim the protection given under the Act. "

The argument is based on the answer to the last question. The answer is in paragraph 6. Shiv Dayal J. posed the question like this:-

"whether the provisions contained in sections 4 and 17 of the Accommodation Control Act No. 23 of 195s apply to the case of a tenant whose tenancy had been determined before the Accommodation Control Act was extended to the place where the suit accommodation is situate "

(40.) THUS we see the question before the Full Bench was not one with which we are concerned. Hence the tenant has no defence under the Accommodation Control Act. His position of a trespasser has been confirmed by the decree. If the suit was dismissed, his possession though not as a tenant would be protected. When the suit has been decreed, protection no longer remains. The Accommodation Control Act could not come to his help. He could not be termed even a statutory tenant because the statute did not protect him. "statutory tenant" is one who is protected by the statute in spite the tenancy being determined. If he is not protected, he is not a "statutory tenant" and cannot claim its privileges. He has to fight his own battle independently of the Accommodation Control Act. That means after the tenancy is determined his position is that of a person in wrongful occupation. The decree may be passed after some time; but when the decree is passed overruling his protection under the Accommodation Control Act, he cannot during the interim period call himself a tenant liable only to pay rent. The decree takes the parties retrospectively to the position when the suit is filed.

(41.) POSSIBLY in order to clarify the doubt, the definition of a "tenant" has been modified in the Accommodation Control Act of 1961 which reads as follows :-

"tenant" means a person by whom or on whose account or behalf rent of any accommodation is, or, but for a contact express or implied, would be payable for any accommodation as a sub tenant, and also any person continuing in possession after the termination of bis tenancy whether before or after the commencement of this Act; but shall not include any persons against whom any order or decree for eviction has been made. "

We thus see that the argument of the appellant that he is only entitled to pay rent cannot be accepted.

(42.) IT was next argued that the decree has not been drawn in accordance with law, as it is not in accordance with Order 20 rule 12 Civil Procedure Code. Order 20 rule 12 reads as follows :-

"where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree- (a) for the possession of the property (b) for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an inquiry as to such rent or mesne profits; (c) directing an inquiry as to rent or mesne profits from the institution of the suit until (i) the delivery of possession to the decree holder; (ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the court, or (iii) the expiration of three years from the date of the decree, whichever eventfirst occurs. (2) where an inquiry is directed under clause (b) or (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry. "

(43.) IT was contended placing reliance on the above order 20 rule 12 that the Court ought to have passed a preliminary decree and not a final decree.

(44.) IN Surajumal v. Kanaklatd (AIR 1964 Assam 102.) holds a view that a preliminary decree is necessary under certain circumstances. In that case their Lordships have observed:

"if the Court desires that an inquiry should be made as to the rent or mesne profits from the institution of the suit till the delivery of possession, a preliminary decree. . . . . . . . . . . . has to be passed to that effect and a final decree in respect of the rent or mesne profits is to be passed in accordance with the result of such inquiry. Hence a decree for compensation for wrongful possession after the period of suit till recovery of possession cannot be granted. "

(45.) A preliminary decree becomes necessary only when the exact amount has to be ascertained. If the plaintiff claims mesne profits on the basis of rent which is fixed, the amount being definitely ascertained by the Court, it is not necessary that a preliminary decree should be passed.

(46.) IN A. P. Bagohi v. Mrs. F. Morgan (AIR 1937 All. 36.) it has been held : -

"preliminary decree becomes necessary where the exact amount has to be ascertained after examination of fresh evidence. "

The observations in Ganeshilal v. Snehalata (61 CWN 136.) are also to the same effect.

(47.) WE find in this case that so far as mesne profits are concerned the court has considered and ascertained the same on the basis of the evidence that has been led. Both the parties agreed to lead evidence regarding mesne profits. No objection has been raised by the defendant tenant that the Court could not decide the mesne profits in the suit. The only objection as we find in the issues is in respect of the amount. The question involved is not of jurisdiction but of procedure only. We therefore do not think the decree would be vitiated in deciding the mesne profits finally in the suit without taking recourse to a decree under Order 20, rule 12 Civil Procedure Code.

(48.) THEN we come to issue No. 14. It reads as under:-

"whether the defendant without an express or implied permission of the plaintiffs but sub-let the accommodation and whether there is no express or implied permission in the lease deed about it Whether the plaintiffs are entitled to eject the defendant on these grounds "

(49.) THE issue is in reference to section 4 (e) of the Accommodation control Act 1955 which reads as under:-

"that the tenant has without an express permission in the contract, sub-let the whole or any portion of the accommodation, or that he has assigned his tenancy right to another or has removed his possession therefrom:"

(50.) IN this connection a reference was made to certain evidence by the appellant. His contention is that the sub tenants were there from the day before the date the premises were let out and therefore there was an implied consent. There is no dispute that the lease-deed was executed in 1950 i. e, before the Accommodation Control Act 1935 came into force. It is also unadmitted position that the agreement Ex. P. 19 came into existence after M. P. Sthan niyantran Vidhan of 1950 came into force (for the sake of brevity hereinafter we will mention it as Vidhan).

(51.) IT has therefore been argued that when the contract was entered into the provisions of Vidhan would be applicable to it. According to section 4 (e) of the Vidhan if the landlord has directly or indirectly permitted the sub-tenancy then it will not be a ground for ejectment. It was argued that even on the date when the agreement was entered into there was a sub-tenant. The tenant therefore cannot be ejected on that ground. It was further argued that when the Accommodation Control Act of 1955 came into force and the vidhan was repealed, the same provision followed. The provision of section 4 (e) says:-

"provided that if the accommodation had been so sublet before the commencement of this Act with the direct or indirect permission of the landlord, the tenant shall not be liable to eviction. "

(52.) IN this connection we may now go through the evidence to find out how far the defendant can be protected. A reference has been made by the appellant to D. W 5 Lalsingh. He has stated that he has been a tenant from 1954. D. W. 7 Shamdanali has stated that he is a servant in the shop of mohammadali who is dead. Now his wife is the owner of the shop. The foundry was closed for 8-10 years. In place of the foundry the defendant has built a house which he had let out. D. W. 8 Tarachand has also stated that he has been a tenant since 1954. He came there after the existence of foundry was over. D. W. 11 Abdul Rahim has stated that he has been a tenant since 1953. Mohammad Hussein D. W. 12 speaks of building of shops and he estimated that Rs. 50,000/-were spent. He is an engineer. This is all the evidence of the defendant.

(53.) STATEMENTS of these witnesses have been subjected to cross examination. D. W. 13 Kikabhai is the defendant himself. He has stated that Nirbhaykumar is his tenant from 1960. Tarachand came in place of Hasanali in 1960. D. W. 8 Tarachand himself has stated that he took another shop on rent more than one and half years back. Similarly Imdadali in his cross-examination has stated that he vacated the premises some two and half years back and in his place one Kothari has come as a tenant.

(54.) THE above evidence discloses that after Vidhan of 1950 and Accommodation Control Act of 1955 came into force the defendant has been taking sub-tenants ; section 4 (e) may be referred to. There are two categories. One is that the tenant is liable to be ejected if without an express permission in the contract he sublets the whole or any portion of the accommodation. Ex. P. 19 not only does not contain express permission but it contains express prevention to sublet the premises. Therefore if we find that after the coming into force of this Act there has been sub letting, the defendant tenant is liable to be ejected, as we find from the defendants own evidence that there has been subletting subsequent to 1955 Act.

(55.) A similar point came for discussion before the Supreme Court and the same argument of the appellant was advanced. Their lordships in Pooranchand v. Motilal (AIR 1964 SC 461 [LQ/SC/1962/425] .) have repelled the arguments and observed :-

"there are no merits in this contention. Section 13 (1) (b) (i) clearly says that if a tenant without obtaining the consent of the landlord in writing has after the commencement of this Act, sublet, assigned or otherwise parted with the possession of, the whole or any part of the premises, he is liable to be evicted. Here, admittedly after the lease deed of 1952 the appellant has sublet some of the rooms of the building to others without obtaining the written consent of the landlord. The fact that there were sub tenants in the said portions could not conceivably be of any help to the appellant, because the new sub-tenants were not holding under the earlier sub-tenants but were inducted by the appellant after the earlier sub tenancies were terminated. The appellant having sublet part of the premises without the consent of the landlord in writing cannot invoke the protection given to him under section 13 of the Act. "

The provisions of section 13 (1) (b) (i) of the Delhi and Ajmer Rent Control Order 1952 are similar to that of section 4 (e) of the Accommodation Control Act of 1955. The defendant is therefore liable to be ejected even on this ground also.

(56.) BEFORE we close way may refer to the application No. 445 made by the appellant on 19-4-69 after the arguments were heard. It refers to some amendments in his written statement. By this amendment the appellant wants us to show that there was some express consent for keeping the sub-tenants. He has also added that there was a seperate contract in which express consent was given. The other subject of amendment is that he should be considered to be a statutory tenant.

(57.) AS regards the express consent evidence has been led and it is now too late for the tenant to say that there was a express consent. Regarding new contract, it also depends on the plea of an express consent. This would necessitate recording of evidence afresh. It will also change the stand taken in the written statement. Regarding the position of a statutory tenant, we have considered that point even without an amendment as it is a question of law depending on the facts proved in the case. The petition is therefore rejected.

(58.) FOR reasons stated above we see that the defendant cannot succeed in appeal nor the plaintiffs can succeed in their cross-objection. Both the appeal and the cross-objection are therefore dismissed with costs. Counsel fee according to scale, if certified. Appeal and cross objection dismissed.