Jaspal Singh, J.
(1) Is the appellant a lawful sub-tenant and if so, is he protected under sections 17 and 18 of the Delhi Rent Control Act? This is the question in this second appeal which needs to be decided. However, first a bird eye view of the facts.
(2) Rajender Kumar and Radhey Shyam Along with their mother Smt. Chandra Wati were the landlords of the premises. They had let out the same to one Sudha Rajan Jain. This was on June 1, 1978. In the year 1979 the landlords filed a petition for eviction of Sudha Rajan Jain on the ground of non-payment of rent under clause. (a) of sub-section (l) of Section 14 of the Act in which an exparte order of eviction was passed on February 8, 1980. Thereafter they moved an application for delivery of possession in execution of the said order. While that application was pending one Amarjit Singh filed objections u/s 25 of the Act alleging that he had been inducted as a lawful sub-tenant by Sudha Rajan jain on the basis of the consent in writing of the landlords permitting her to sub let the premises and that even a notice as required u/s 17 of the Act with regard to the creation of sub-tenancy had been not only served personally but sent under certificate of posting also. He thus claimed that he was protected under sec
(3) The learned Additional Rent Controller before whom the objections were filed u/s 25 of the Act held that the appellant was not a lawful sub-tenant and that in any case no notice of sub-tenancy as required u/s 17 of the Act had been proved to have been served. He, Therefore, dismissed the section petition. Aggrieved by the said order the appellant preferred an appeal before the Rent Control Tribunal. The Rent Control Tribunal found no fault with the order of the Additional Rent Controller and agreeing with him dismissed the appeal. Hence this second appeal.
(4) I may mention that the Mr. Amarjit Singh had died during the pendency of the objection petition before the Additional Rent Controller and consequently, his father was substituted in his place.
(5) The learned counsel for the appellant has submitted that neither the Additional Rent Controller nor the Rent Control Tribunal had looked into the matter in the right perspective and consequently had arrived at wrong conclusions. His contention is that the decree-holders had ''authorised Sudha Rajan Jain to sub-let the premises and it was on account of that consent in writing that the premises had been sub-let by Mrs. Jain to Amarjit Singh. It is next contended that the appellant immediately on having been inducted as a sub-tenant had sent notice to one of the landlords namely Rajender Kumar under certificate of posting and had even otherwise personally served copies of that notice upon all the landlords and that for that reason it could not be said that the requirement of section 17 of the Act had not been complied with.
(6) As would be borne out from what has been recorded by me in the preceding paragraphs, the dispute revolves around principally two points, namely (i) Had there been consent in writing by the landlords to sublet the premises to Amarjit Singh? and (ii) If he was a law full sub-tenant of the premises, had he served the landlords with the notice as required u/s 17 of the Act?
(7) Clause (b)of subsection(l) of Section 14 of the Act would go to show that consent to sub-let has to be in writing. Oral consent or consent by conduct or acquiescence would thus be not sufficient. The Supreme Court has laid down in M/s. Shalimar Tar Products Ltd. vs. H. C. Sharma & others 1988 ( 1 ) R.C.J. 483 that for the purpose of clause (b) of sub section ( 1 ) of section 14 of the Act consent to sub-let must not only be in writing but must be to the specific sub letting. This view has been followed by the Supreme Court in its later judgments as well and in this respect reference may be made to Duli Chand (dead) by L.R.S vs. Jagmender Dass 1990(l)R.C.J. page l. The Supreme Court observed in the said case that "it was necessary for the tenant to obtain the consent in writing to sub let the premises. Mere permission or acquiescence will not do. The consent shall also be to the specific sub-letting or parting with possession."
(8) Was there a consent in writing to sub-let in the present case? If so was it general in nature or specific? Unfortunately the appellant has not proved the lease deed executed by the landlords in favor of Sudha Rajan Jain. Only its photocopy has been placed on record which too has not been proved. It cannot thus be said that the tenant had been granted permission in writing to sub-let. In any case even if that photocopy is looked into and more specifically the clause relied upon by the appellant it would go to show that it does not serve the purpose. The clause runs as under:-
"THAT the Lesser gives the right to the Lessee that the Lessee can sublet whole or part of the said premises on the terms and conditions settled between the lessee and its sub-lessee. The terms of such a sub-lease shall be in consonance of this lease deed and shall not in any manner whatsoever impair any of the covenants of the lease deed."
(9) Though the clause does give right to sub let, unfortunately for the appellant, the consent is general in nature and not specific. The Supreme Court, as already noticed above, has held that the consent has to be to the specific sub-letting. Thus even if this p73 clause is taken note of in view of the law laid down by the Supreme Court the appellant cannot take benefit of the same, it being general in nature and being not a consent to the specific sub-letting. The sub-letting to Amarjit Singh was thus not lawful.
(10) SUB-SECTION(2)OFSECTION 16 of the Act says:-
"NO premises which have been sub-let either in whole or in part on or after the 9th day of June, 1952, without obtaining the consent in writing of the landlord, shall be deemed to have been law fully sub-let."
Even section 17 of the Act on which the appellant is leaning so heavily for support would go to show that it applies only where the premises have been sub-let "with the previous consent in writing of the landlord". As already noticed by me above, the appellant cannot be said to have been sub-let the premises "with the previous consent in writing of the landlord" for the simple reason that neither the consent is proved nor, even if it is taken note of, can it be said to be consent for specific sub-letting. Thus the entire edifice raised by the appellant falls to the ground.
(11) Even if, for argument''s sake, it is assumed that Amarjit Singh had been inducted as a sub-tenant with the previous consent in writing of the landlords, section 17 of the Act will still not come to the rescue of the sub-tenant as it is not proved on the record that he had given notice to the landlords with regard to the creation of the sub-tenancy within one month of the date of sub tenancy in the "prescribed manner". What is that "prescribed manner"? For an answer we shall have to look into Rule 22 of the Delhi Rent Control Rules, 1959. The said Rule is as follows:-
"SERVICE of notice etc. - Unless otherwise provided by the Act, any notice or intimation required or authorised by the Act to be served on any person shall be served - (a) by delivering it to the person; or (b) by forwarding it to the person by registered post with acknowledgment due."
(12) That a notice as envisaged in section 17 of the Act served in the manner as prescribed in rule 22 is a principal requisite to a sub-tenant claiming lawful sub-tenancy is a matter which is no longer in doubt in view of the judgments of this court, more specifically, Murari Lal vs. Abdul Gaffar and others 1973 RCR748, and Smt. Gaura Devi vs. Rameshwar pershad and another, 1978(2) RLR292 and the judgments of the Supreme Court already referred to by me above. Admittedly the alleged notice was not sent by registered post with acknowledgement-due. This being the position the appellant'' was required to prove that the said notice was actually delivered to the then landlords. The Additional Rent Controller who dealt with the objections and the Rent Control Tribunal who later heard the appeal have given concurrent finding to the effect that the service of notice was not proved. I see no reason why that concurrent finding should be interfered with. In any case the alleged sending of notice under Certificate of Posting besides being not sanctioned by Rule 22 as already referred to above, would not lead to the conclusion that it was in fact delivered to the addressee. In
"APART from leading evidence that a notice u/s 17 was sent under Certificate of Posting, there is admittedly no direct or other evidence which can lead to the conclusion that the notice was in fact delivered to the addressee. The delivery of the notice to the person concerned contemplated by rule 22(1) means actual physical delivery of the notice. There is nothing on record to this effect. Merely because notice is alleged to have been sent under Certificate of Posting cannot lead to the conclusion that the notice was actually delivered to the landlord. Even if it be assumed, for the sake of argument that a postman who carries the letter sent under Certificate of Posting is an agent of the author of the letter, it must still be shown that the postman actually physically delivered the letter to the addressee. If there had been any evidence to this effect, it could possibly have been contended that the notice had been duly served in the manner provided by rule 22 (a) Evidence to this effect is, however, lacking in the present case. Merely sending of notice even by writing the correct address but not by registered post acknowledgment due but under Certificate of Posting would not amount to complying with the provisions of rule 22. Under these circumstances, the only conclusion which can follow is that there has been no proof of service of notice in the manner prescribed by the Act and the rules."
(13) Besides what has been observed in the judgment referred to above to which, with respect, I fully subscribe, I may mention that the person who actually posted the letter has been kept back. Even if it be taken that the presumption is in favor of service, the notice was not sent to all the landlords. It was admittedly addressed only to one of the landlords and was sent only to him. It was not jointly addressed to all the landlords. In any case there is evidence in rebuttal to the effect that no such notice was received. Thus, even if there is any presumption of service, it stands rebutted. Amarjit Singh had stated that the copies of the notice were served personally by him on all the landlords. If the copies of the notice had been served personally on all the landlords, where was the need to send the original notice under the Certificate of Posting and that too to only one of the landlords? I feel that this is a circumstance which goes against the veracity of his version. In any case, excepting his solitary statement on this aspect of the matter there is nothing on the record to corroborate or substantiate this version. I am, Therefore not inclined to place reliance on it. Moreso, as it is rebutted in the evidence of the landlords - decree holders.
(14) During arguments my attention was drawn by the learned counsel for the appellant to a judgment of the Supreme Court in Girdharilal Sons vs. Balbir Mathur 1986 Rlr 484 and on its basis it was contended that as mere knowledge of the landlord about the subsistence of sub-letting would amount to sufficient notice and that as in the case before me, one of the landlords namely Rajinder Kumar had admitted to have come to know about the sub-letting in May, 1979, Therefore that knowledge must be taken to be sufficient notice within the meaning of section 17 of the Act. However, I am unable to make myself agree to this contention. In Girdhari Lal sons'' case, the landlord had signed as many as three documents showing consent to and knowledge of the sub-letting. It was on account of these peculiar facts that the Supreme Court held that there was specific consent to subletting and its notice to the landlord. However, what is significant to be noticed is that in the said case also the Supreme Court laid emphasis that the consent as well as the notice must be in writing. This is borne out from the following extracted from the said judgment:
"THE essence of the requirement, Therefore, is that the consent of the landlord to the sub-letting and the notice of the creation of the sub-letting have to be evidenced by writing."
And that:
"THE writing is to be such as to indicate clearly the consent of the landlord to the creation of a sub-tenancy and his knowledge of the particular sub tenancy after its creation. The writing relating to the consent and the writing relating to the knowledge (notice) may be by different documents or they may telescope into the same document."
(15) In the present case it is no where alleged and not even suggested in crossexamination of Rajinder Kumar that his knowledge was through the tenant or the subtenant and that there was any document to evidence it. Mere knowledge from some undisclosed source and that too after almost a year of the creation of sub-tenancy would not attract the application of the Supreme Court''s judgment.
(16) Section 18 of the Act lays down that where an order for eviction is passed against the tenant u/s 14 of the Act but not against a sub tenant referred to in section 17 and a notice of the sub tenancy has been given to the landlord, the sub tenant shall, with effect from the date of order, be deemed to become a tenant holding directly under the landlord in respect of the premises in his occupation. As found by me above, the appellant is not a sub tenant covered by the provisions of sub section (1) or sub section (2) of section
(17) No consent to sub let has been proved and in any case the clause relied upon by the appellant gives only general consent and not specific consent as required by law. Even otherwise no notice as required u/s 17 read with Rule 22 (a) has been proved to have been served. The protection of section 18 is thus not available to the appellant. Consequently the appellant is bound by the order of eviction.
(18) For the reasons recorded above I find no merit in the appeal. The same is hereby dismissed with costs. Counsel fee assessed at Rs.500.00 .
