Kerala High Court
Fathima vs Saidali Bafakhy on 22 February, 2001
Author: P.K. Balasubramanyan
Bench: P.K. Balasubramanyan
ORDER P.K. Balasubramanyan, J.
1. All these Civil Revision Petitions filed under S.20 of the Kerala Buildings (Lease and Rent Control) Act arise from R.C.P. 45 of 1982 filed by landlords by the landlords of a building, hereinafter referred to as the landlord, though they are two in number. The claim was for eviction under sub-ss. 2,3 and 4(1) of S. 11 of the Act. The application was resisted by the tenant and by the alleged sub-tenants. The Rent Control Court refused to order eviction under sub-ss. 3 and 4(1) of S.11 of the Act, but granted an order for eviction under S.11(2) of the Act. There was no appeal by the tenant. But, the landlords filed R.C.A. 189 of 1990 before the Rent Control Appellate Authority under S.18 of the Act. The Appellate Authority, on a reappraisal of the materials, confirmed the order of the Rent Control Court disallowing eviction under S.11(4)(i) of the Act. But the Appellate Authority, reversing the finding of the Rent Control Court found that the bonafide need set up by the landlord was established and ordered eviction under S.11(3) of the Act. Feeling aggrieved by the order for eviction under S.11(3) of the Act, the tenant has filed C.R.P. 741 of 1992. Feeling aggrieved by the denial of an order for eviction on the ground of subletting under S.11(4)(i) of the Act, the landlord has filed C.R.P. 1247 of 1992. The status of the sub-tenants as such was not disputed, but what was contended was that the creation of those sub-tenancies did not give the landlord a right to evict the tenant under S.11(4)(i) of the Act. Feeling aggrieved by the order for eviction under S.11(3) of the Act, the sub-tenant, respondent No. 4 and the legal representative of the sub-tenant respondent No. 5, and the legal representatives of the sub-tenant, respondent No. 6, have filed C.R.P. Nos. 507, 1529 and 1433 of 1992 respectively. Hence the questions involved in these revisions are, whether the Appellate Authority was legal, regular and proper in ordering eviction under S.11(3) of the Act and in not ordering eviction under S.11(4)(i) of the Act. The question whether the sub-tenants are entitled to challenge the order for eviction passed under S.11(3) of the Act, also arises for consideration.
2. No doubt in C.R.P. 1247 of 1992, the revision filed by the landlord, the landlord has also sought to raise a question regarding the rate of rent payable by the tenant. The Rent Control Court and the Appellate Authority did not accept the case of the landlord that the rent was Rs. 300 per month, but had accepted the evidence on the side of the tenant that the rent was only Rs. 260 per month. Though an attempt was made on behalf of the landlord to challenge the finding on the rent payable, rendered by the authorities below, we are not satisfied that there is any ground to interfere with the finding that the landlord has not established that the monthly rent payable was Rs. 300 and it was not Rs. 260 as claimed by the tenant. Even after accepting that case of the tenant, an order for eviction under S.11(2) of the Act had been passed, which had not been challenged by the tenant before the Appellate Authority. Since we do not find our way to accept the challenge of the landlord to the rate of rent, no modification of the order for eviction passed under S.11(2) of the Act, is called for.
3. We shall first deal with the challenge of the tenant to the claim for eviction under S.11(3) of the Act. It was pleaded by the landlord that the building was needed for the purpose of starting a trade by the son of the first petitioner landlord. It was pleaded that the son was about 48 years old, that he had no other avocation or business, that he wanted to start a business of his own, that he was dependent on the landlords for a building and that the building was bona fide needed for the starting of a business by him. In the objections filed by the legal representatives of the original tenant, respondents 1 and 2, there was no denial as such of the plea that the son of the first petitioner landlord had no other avocation or business and that he wanted to start a business in the petition schedule building, whereas in the objection filed by respondent No. 4 a legal representative of a sub-tenant, a contention was taken that it was known that the owner of the first petitioner landlord had an evocation of his own. That was the stand adopted by the other sub-tenants also. One other contention that was sought to be raised was that the landlords had not specified the investment they propose to make or the space the defendant needed for the starting of the business, and it was pointed out that the building that was sought eviction of, was a substantial large building.
4. In support of the case of landlords, in addition to marking the documents Ext. A-1 to A-5, the son of the landlord for whose benefit the eviction was being sought was also examined as PW. 1. The first petitioner landlord was examined as PW. 2 and another witness was examined as PW. 3. On behalf of the tenant, sub-tenants, R.Ws. 1 to 4 were examined and Ext. B1 to B345 were marked. The Rent Control Court on an appreciation of this evidence found that though from the evidence of PW. 1 and that of R.W. 1 it could be found that the requirement set up by the landlords was the Rent Control Court also held that the legal representatives of the tenant were not entitled to the protection of the second proviso to S.11(3) of the Act. The Rent Control Court disallowed eviction in view of its finding on bona fide need. The Appellate Authority, on a re-appreciation of the pleadings and the evidence in the case, came to the conclusion that the Rent Control Court was not justified in finding that the need set up by the landlord was not bona fide. The Appellate Authority also found that the reasons given by the Rent Control Court for negativing the claim for eviction under S.11(3) of the Act could not be sustained. It agreed with the Rent Control Court that the tenants had not established that they were entitled to the protection of the second proviso to S.11(3) of the Act. It was thus, that the Appellate Authority granted an order for eviction under S.11(3) of the Act.
5. The main contention raised on behalf of the tenant was that the building in question was a big building, a 'pandikasala' and the landlord had not specified the magnitude of the business PW. 1 proposed to start in the petition schedule building and the landlords had not shown that it was necessary to get an order for eviction of the entire building, including the various portions in the possession of the sub-tenants. We find that this argument is not acceptable. Firstly, the landlords had given evidence of the business that was proposed to be started in the petition schedule building and going by the nature of the business set up, obviously, space would be required for storing the foodgrains and for carrying on the business. Secondly, the subject-matter of the lease to the tenant was the entire building and it is not open to the landlords to seek eviction of portions of that building while applying for eviction under S.11(3) of the Act. The landlords were also not in possession of any part of the building and hence could not also resort to S.11(8) of the Act. The landlords do not recognise the sub-tenancies created by the tenant. The landlords are therefore not obliged to treat the portions held by the various sub-tenants as separate buildings coming within the definition of a 'building' in the Act and to seek eviction of some portions only. This is a case where the landlords had either to be given an order for eviction of the entire building that was the subject matter of the lease, if they satisfied the court that the need set up by them was bona fide or denied an order for eviction in respect of the entire building if the court was not satisfied that the need set up by them was bona fide. The Appellate Authority in our view, was therefore, justified in holding that the claim for eviction under S.11(3) of the Act could not be thrown out on the ground that the landlords have been established the need for each part or portion of the petition schedule building held separately by the sub-tenants. On the scheme of the Act, there does not appear to be any scope for insistence on such a requirement on the part of the landlord being established.
6. As regards the bona fides of the need set up, the Appellate Authority has rightly found that PW. 1, who wanted to start a trade in the petition schedule building, was a dependent of the landlord. The Appellate Authority also found that the tenant had no case that PW. 1 had got any other building of his own in which he could start any business. PWs. 1 and 2, that there was clear evidence on their side to show the nature of the business that PWs. 1 proposes to start and carry on in the building. The Appellate Authority found that nothing was brought out to discredit the evidence of PW. 1 regarding the evidence he has given in support of the plea for his occupation. The Appellate Authority noticed that PW. 1 had no permanent avocation of his own. That authority held that the absence of evidence on the actual volume of trade PW. 1 proposes to conduct, could not be made a ground to deny the claim for eviction, since, once the bona fides of the need itself is established, the landlord would be entitled to an order for eviction under S.11(3) of the Act. On a scrutiny of the evidence as a whole, is based on a proper appreciation of the pleadings and the evidence in the case. We are in agreement with that finding. In any event, the finding does not suffer from any illegality, irregularity or impropriety as to warrant interference in revision.
7. No claim for protection under the second proviso to S.11(3) of the Act was put forward or established by the legal representatives of the tenant. But the Rent Control Court had found that the tenants were not entitled to the protection of the second proviso to S.11(3) of the Act. The correctness of that finding was not even canvassed before the Appellate Authority on behalf of the tenants. In that situation, the Appellate Authority was fully justified in ordering eviction under S.11(3) of the Act.
8. Coming to the claim for eviction under S.11(4)(i) of the Act, the case of respondent No. 4 stands on a different footing from the case of the other sub-tenants respondents 5 and 6 whose legal representatives are respondents 7 to 12. Sublease in favour of Achuthan Nair, predecessor-in-interest of respondent No. 4 before the Rent Control Court was in the year 1953 before the commencement of the Kerala Buildings (Lease and Rent Control) Act, Act 16 of 1959. The sublease in favour of respondents 5 and 6 were in the years 1967 and 1970 respectively and hence after the commencement of the Kerala Buildings (Lease and Rent Control) Act, Act 2 of 1965. In the light of the decision of the Supreme Court in Mathai v. Subordinate Judge, (AIR 1970 SC 337) even if the sublease were subsequent to the commencement of the Kerala Buildings (Lease and Rent Control) Act, Act 16 of 1959, but before Act 2 of 1965, the tenant would be liable to be evicted on the basis of those sublease if it is shown that the landlord had established a claim for eviction under S.1(4)(i) of the Act. As regards the claim against respondents No. 4, the legal representative of Achuthan, the tenancy having commenced before Act 16 of 1959 and while the Madras Buildings (Lease and Rent Control) Act, 1949 was in force, the question would be whether that subletting would give the landlord a right of eviction. In Mathai v. Subordinate Judge, (AIR 1970 SC 337) the Supreme Court held in the light of S.34(1) of Act 2 of 1965 that in the light of the Interpretation and General Clauses Act, 1125, the provisions in Act 16 of 1959 would be the corresponding law and consequently, a subletting after the commencement of Act 16 of 1959, though before the coming into force of Act 2 of 1965, would also clothe the landlord with a right to evict the tenant by invoking S.11(4)(i) of Act 2 of 1965. It will therefore be necessary to look at the relevant provisions of Act 16 of 1959 to see whether a subletting prior to the commencement of that Act, while the earlier Act was in force, would give the landlord a right of eviction under S.11(4)(i) of the Act. S.11(4)(i) of the Act 16 of 1959 differed in one material particular from S.11(4)(i) of Act 2 of 1965. Whereas in S.11(4)(i) of Act 2 of 1965 if the tenant after the commencement of Act 2 of 1965 without the consent of the landlord sublets the building, he will be liable to be evicted. But under S.11(4)(i) of the 1959 Act, all that is stated is that the tenant will be liable to be evicted, if the tenant has without the consent of the landlord transferred his right under the lease or sublet the entire building or any portion thereof if the lease does not confer on him any right to do so or the landlord has not consented to such subletting. The expression 'after the commencement of the Act' is absent in S.11(4)(i) of Act 16 of 1959 would be attracted in a case where there is a subletting that is not authorised by the lease deed or is not granted with the consent of the landlord and the landlord would be entitled to seek eviction. But S.33 of Act 16 of 1959 only saves pending proceedings under the Madras Buildings (Lease and Rent Control) Act and enacts a fiction that they may be deemed to have been commenced or taken under the corresponding provisions of Act 16 of 1959. There is no saving of a right to apply for eviction under the Madras Buildings (Lease and Rent Control) Act as such. It is well settled that a mere right to apply under a statute is not a vested right available to a person which could be exercised by him notwithstanding the repeal of the statute and mere right to apply is not an accrued right. Since no proceeding had been taken by the landlord for eviction of Achuthan or his legal representative, respondent No. 4 under the Madras Buildings (Lease and Rent Control) Act on the ground of subletting, it could not be said that a right to have eviction on the ground of subletting became available, to be continued under Act 16 of 1959. The landlords also did not take advantage of S.11(4)(i) of Act 16 of 1959 and seek eviction of the tenant on the ground of subletting on the plea that the tenant has sublet the building without the consent of the landlord. The proceedings were commenced as against the tenant and the legal representative of Achuthan, only after 2 of 1965 came into force. The subletting involved therein was subletting that was of the year 1953, before the commencement of Act 16 of 1959. In that situation, we are of the view that the subletting in favour of Achuthan, predecessor of respondent No. 4 does not furnish a cause of action to the landlords in this case to make an application for eviction under S.11(4)(i) of the Act. It is no doubt true that in the lease deed executed in favour of the tenant, there is no conferment of a right on the tenant to sublet, nor was nay attempt made to establish that there was consent by the landlords as such, to that subletting and if the subletting had come within the purview of S.11(4)(i) of the Act, the landlords would be entitled to an order for eviction.
9. But that is not the position regarding respondents 5 and 6. Admittedly the subletting in favour of respondent No. 5 was in the year 1967 and that in favour of respondent No. 6 was in the year 1970. There is no case for the legal representatives of the tenant or for the sub-tenants that the lease deed in favour of the original tenant conferred on the original tenant a right to sublet. The Appellate Authority has negatived the claim for eviction on the ground of subletting only on the ground that the landlords have not taken prompt action and must have been aware of the subletting and must be taken to have acquiesced in the subletting. In the light of the decision of the Supreme Court in Pulin Behari Lal v. Mahadeb Dutta & Ors. (1993 (1) SCC 629) it is clear that waiver of a right under the statute cannot be easily. The Appellate Authority has essentially relied on the decision of this Court in Kalyanasundaram Pillai v. Ramamoorthy (1985 KLT 922) to hold that there was consent to the subletting which could be inferred from long silence on the part of the landlord and therefore the subletting to respondents 5 and 6 would not entitle the landlord to an order for eviction under S.11(4)(i) of the Act. We think that in the light of the decisions of the Supreme Court in K.K. Krishnan v. M.K. Raghavan, AIR 1980 SC 1756, Gappulal v. Thakurji Shriji Dwarkadheeshji & Anr. (AIR 1969 SC 1291), Hiralal Kapur v. Prabhu Choudhury (AIR 1988 SC 852) and the decision above referred to the theory of acquiescence cannot be successfully pursued by the tenant. There is no case that there was prior consent of the landlord for the subletting. The lease deed did not authorise the subletting. The subletting was after the commencement of Act 2 of 1965. In that situation, subletting in favour of respondents 5 and 6 clearly attracted S.11(4)(i) of the Act. Mere silence of the landlords from 1973, the year in which the tenant died and the date on which the petition for eviction was filed cannot be considered to be a consent for the subletting within the meaning of S.11(4)(i) of the Act. We have discussed the scope of the consent referred to in S.11(4)(i) of the Act in our decision in C.R.P. 1132 of 1992. In that decision we have also overruled the decision in Kalyanasundaram Pillai v. Ramamoorthy (1985 KLT 922) relied on the Appellate Authority. There is also evidence to show that the original tenant was tyrannical and the landlords were afraid of him. In that situation mere silence or failure to raise prompt objection to the subletting cannot lead to the conclusion that the landlords have waived their right for eviction under S.11(4)(i) of the Act. In the circumstances obtaining in the case we are of the view that the subletting in favour of respondents 5 and 6 without the consent of the landlord clearly enables the landlord to claim eviction under S.11(4)(i) of the Act. The Appellate Authority in our view was in error in refusing eviction under S.11(4)(i) of the Act in so far as it related to the subletting of respondents 5 and 6.
10. There is no dispute that even if the subletting relates only to a portion of the building, the landlord would be entitled to an order for eviction in respect of the whole of the building. It is therefore clear that even though the subletting in favour of Achuthan, predecessor of respondent No. 4 before the Rent Control Court was before the commencement of Act 16 of 1959 and did not furnish a cause of action for eviction on the ground of subletting, since the other two sublettings have furnished the landlord with a cause of action, the landlord would be entitled to an order for eviction in respect of the whole of the building let out to the original tenant, predecessor-in-interest of respondents 1 to 3 before the Rent Control Court. We therefore reverse the finding of the Appellate Authority on this aspect and hold that the landlords are entitled to an order for eviction under S.11(4)(i) on the ground of subletting.
11. In the result, C.R.P. 1247 of 1992 filed by the landlords is partly allowed and the landlords are granted an order for eviction under S.11(4)(i) of the Act in addition to the orders for eviction passed in their favour under S.11(2) and 11(3) of the Act. CRP Nos. 507, 741, 1433 and 1529 of 1992 are dismissed confirming the order for eviction under sub-ss. (2) and (3) of S.11 of the Act. The parties are directed to suffer their respective costs in this Court.