Madras High Court
P.Sundaram vs T.Balasubramanian (Died) .. 1St on 11 September, 2015
Author: P.Devadass
Bench: P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.09.2015 CORAM THE HONOURABLE MR.JUSTICE P.DEVADASS C.R.P.No.936 of 2004 and C.M.P.No.7310 of 2004 and M.P.(MD) No.1 of 2006 1.P.Sundaram 2.M.S.Janardanan ... Petitioners/Tenants -vs- 1.T.Balasubramanian (Died) .. 1st Respondent/Landlord 2.Meena 3.Thirumalaikumaran 4.Sivakami 5.Dhanam 6.Saravanan 7.Nagalakshmi 8.Tamil Selvi ... Respondents 2 to 8/LRs of Landlord (RR2 to 8 are brought on record as Lrs of the deceased sole respondent vide order dated 13.12.2010 & made in MP(MD) No.1 of 2010 in CRP No.936 of 2004) PRAYER: Petition filed under Section 25 of Tamil Nadu Building (Lease and Rent Control) Act 18 of 60 as amended by Act 23/73 and by Act 1/80, praying to set aside the fair and decreetal order dated 25.11.2002 made in R.C.O.P.No.306 of 1998 on the file of the Principal District Munsif Court, Madurai Town (Rent Controller) as confirmed by fair and decreetal order dated 17.12.2003 made in RCA No.1 of 2003 on the file of the Principal Subordinate Judge, Madurai (Rent Control Appellate Authority). !For Petitioners : Mr.G.Ramadurai ^For Respondents 2 to 8 : Mr.V.Perumal :O R D E R
1.This revision has been preferred as against the order of the learned Rent Control Appellate Authority (Principal Sub Judge), Madurai in dismissing R.C.A.No.1 of 2003, confirming the order of eviction passed in R.C.O.P.No.306 of 1998 by the learned Rent Controller (Principal District Munsif), Madurai Town.
2.This matter arises out of landlord-tenant dispute.
3.The petition mentioned building bearing door No.1/1 situate in 50 Feet Road, Sellur, Madurai Town belongs to 1st respondent. It has row of shops. Shop Nos.1 and 3 were rented out to first revision petitioner, wherein he run a coffee bar. Shop No.6 has been rented out to second revision petitioner, which he said to have used as a godown.
4.In R.C.O.P.306 of 1998, before the learned Rent Controller (Principal District Munsif), Madurai Town the landlord sought for eviction of the revision petitioners on the ground that the 1st revision petitioner had sublet shop No.3 to 2nd revision petitioner, wherein 2nd revision petitioner run Maragatham Stores, first revision petitioner put the building to different user/committed act of wastage and also willful default in paying the rent.
5.It has been contended that the 1st revision petitioner did not sublet shop No.3 to 2nd revision petitioner, but he was doing electrical spare parts business in shop No.3 in partnership with the second revision petitioner.
6.Appreciating the oral and documentary evidence, the learned Rent Controller ordered eviction only on the ground of subletting with reference to only one shop, namely, shop No.3.
7.As against that, the revision petitioners have preferred the appeal in R.C.A.No.1 of 2003 before the Rent Control Appellate Authority (Principal Subordinate Judge), Madurai. The Appellate Authority reappraised the evidence and concurred with the findings of the Rent Controller.
8.According to the learned counsel for the revision petitioners, the first revision petitioner carried on spare parts business in shop No.3 along with the second revision petitioner. In his cross examination before the Rent Controller, the landlord/P.W.1 also admitted this. In such circumstances, now the landlord cannot object to subletting. In this connection, the learned counsel for the revision petitioners cited A.S. SULOCHANA V. C. DHARMALINGAM (AIR 1987 SUPREME COURT 242).
9.The learned counsel for the revision petitioners also contended that the landlord refused to receive the rent seeking higher rent, thereafter, he came forward with the version of subletting with a malafide intention.
10.On the other hand, the learned counsel for the respondents/landlords contended that partnership business between the first revision petitioner and the second revision petitioner is a myth, concoction, story-telling. It is evident from Ex.P.5, whereunder the taxes were paid by the second revision petitioner in the name of his ?Maragatham Stores?. And Maragatham is none other than the wife of second revision petitioner. Further, there is no acceptable evidence to show that with respect to shop No.3 there was partnership business between the revision petitioners. There is no question of acquiescence or implied consent. The decision cited is distinguishable on facts. The concurrent findings of the Rent Control Authorities is not perverse.
11.I have anxiously considered the rival submissions, perused the materials on record, the impugned orders of the Rent Controller and the Rent Control Appellate Authority and the decision cited.
12.Admittedly, in 1988, shop Nos.1 and 3 were rented out to first revision petitioner. 1st revision petitioner (R.W.1) stated that there is written rental agreement. But, he did not produce the same. The terms and conditions of tenancy, more particularly whether the lease agreement contains any provision deed for subletting are not known.
13.The revision petitioners have admitted that shop Nos.1 and 3 were exclusively rented out to first revision petitioner only. He is the main tenant. In his cross-examination, R.W.2 (second revision petitioner) would say that in 1994 shop No.6 was rented to him and he used it as godown. Now, it is a fact that in 2001, he had vacated shop No.6 and there the landlord is running his 'Surya Stores'.
14.The main allegation as against the main tenant (first revision petitioner) is that he sublet shop No.3 to second revision petitioner. Further, it is the stand of the revision petitioners that in partnership they carried spare parts business in shop No.3.
15.Under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (T.N. Act.No.18/1960) tenants have become statutory tenants. Such tenants cannot be evicted only as provided under the Act. Section 10 contains several grounds for eviction. As per Section 10(2)(ii)(a) of the Act subletting either whole or a part of the tenement without the written consent of the landlord will be a ground for eviction.
16.Subletting is putting a third party in exclusive, legal possession of the premises. It is main tenant diverting himself of the premises in favour of a third party. Generally, subletting will be a secret or concealed arrangement between the main tenant and the sub tenant. Direct evidence to prove sub- tenancy is difficult. Sub-tenancy could be proved by inference based on established factual matrix.
17.As per Section 10(2)(ii)(a) of T.N. Act No.18/1960, there must be written consent from the landlord for sub-tenancy. Therefore the principle of acquiescence cannot be imported with respect to sub-tenancy as against the landlord since written consent is a statutory requirement. Sub-tenancy alleged has to be proved by the landlord. The onus is upon him. It may shift when the main tenant pleads that there is consent of the landlord to sub-let the premises. In such a case, the main tenant has to establish the consent of the landlord having been obtained for subletting. When the tenant without parting his legal possession does only a business in the premises in association with a third party will not amount to sub-tenancy.
18.Now, in this case, shop Nos. 1 and 3 having been rented out to first revision petitioner only has been admitted by both the revision petitioners before the learned Rent Controller. In shop No.3 an electrical spare parts shop in name and style of 'Maragatham Store' has been run by the second revision petitioner. The Municipal Tax and Commercial Tax for the said Maragatham stores have been paid by the second respondent (Ex.P.5). The Maragatham is none other than the wife of the second revision petitioner. Under Ex.R.5 municial tax has been paid in the name of both the revision petitioners long after the eviction petition and it is intended for the purpose of this case.
19,There is no partnership deed, written document to show that the 1st revision petitioner did business in partnership with 2nd revision petitioner in shop No.3. In such circumstances, both the Rent Controller and the Rent Control Appellate Authority have rightly recorded the finding that the business in shop No.3 was not run by the first revision petitioner in partnership with 2nd revision petitioner and it has been exclusively run by second revision petitioner and he was having the exclusive possession of shop No.3. Thus, the first revision petitioner is the main tenant and the second revision petitioner is the sub-tenant.
20.Now, it has been contended by the revision petitioners that the said sub- tenancy is with the consent of the landlord.
21.In as much as the sub tenancy has been admitted and it is pleaded that it is with the consent of the landlord, the onus is upon the revision petitioners to establish that the sub tenancy was created with the consent of the landlord.
22.Admittedly, there is no evidence to show that the lease deed empowered the main tenant to create sub-tenancy. Admittedly, there is no written permission from the landlord to the main tenant to sublet shop No.3 to the second revision petitioner.
23.In A.S. SULOCHANA V. C. DHARMALINGAM (AIR 1987 SUPREME COURT 242) the Hon'ble Supreme Court observed as under:
?There is nothing on record to show that the subletting in question, which was made in 1952, 18 years before the institution of the suit in 1970, was in violation of the relevant provisions of law. The appellant cannot succeed unless the appellant establishes that Section 10(2)(ii)(a) has been violated and the tenant has incurred the liability to be evicted on the ground of unlawful sub-letting notwithstanding the fact that the lease did not confer on him any such right, and that such unlawful sub-tenancy was created without the written consent of the then landlord. There is no evidence, direct or circumstantial, on the basis of which it can be said that the lease did not confer on the father of the respondent the right to create a sub-tenancy. Or that it was done without the written consent of the then landlord, that is to say, the father of the appellant. Under the circumstances, in any view of the matter the appellant cannot successfully evict the respondent on the ground of having created an unlawful sub-tenancy within the meaning of Section 10(2)(ii)(a) of the Act.?
24.In Sulochana (Supra) the said observations came to be made in view of the factual matrix and evidence in that case. Besides that as per Section 10(2)(ii)(a) of the Act, the landlord has to establish the subletting. Now, in the case before us, the plea of the revision petitioners before the Rent Controller was no subletting but only partnership between both. As already stated, generally when there is subletting, there will be secret arrangement between the main tenant and the sub-tenant and it will be within their special knowledge, unless the sub-tenancy is consented to by the landlord. The theory of partnership business has been rejected by both the authorities below. Such finding is backed by evidence and it is not perverse. It was not established that at any point of time the landlord had accepted the sub- tenancy 2nd revision petitioner under the 1st revision petitioner. In the circumstances, the principle of acquiescence cannot be imported.
25.It is a clear case of creation of sub-tenancy by the main tenant (first revision petitioner) in blatant violation of mandatory requirement in Section 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act. In the circumstances, nothing have to show that the interference of this Court is called for to disturb the concurrent findings of the Rent Controller and the Appellate Authority.
26.In the result, this revision fails and it is dismissed. The eviction order of the Rent Controller (Principal District Munsif), Madurai Town with respect to shop No.3 as confirmed by the Rent Control Appellate Authority (Principal Subordinate Judge), Madurai is upheld. The Revision Petitioners shall vacate shop No.3 within two months from today. No costs. Consequently, connected Miscellaneous Petitions are closed.
To
1.The Principal District Judge, Madurai.
2.The Rent Control Appellate Authority, (Principal Subordinate Judge), Madurai.
3.The Rent Controller, (Principal District Munsif), Madurai.
.