Karnataka High Court
B.H. Rangaswamy And B.H. Jalajakshi vs Mysore Arts And Wood Works on 23 September, 1992
Equivalent citations: ILR1992KAR3632, 1992(4)KARLJ521
JUDGMENT Shivashankar Bhat, J.
1. Regular First Appeal No. 780/88 arises out of the suits filed by B.H.Rangaswamy and another, originally as O.S.No. 350/75. This O.S.350/75 later came to be numbered as O.S.No. 850/80.
The other Appeal - R.F.A. No. 781/88 arises out of the suit filed by Smt. B.H.Jalajakshi as plaintiff, originally as O.S.No. 351/75. This O.S.No. 351/75 later came to be numbered as O.S.No. 849/80.
2. In the suit filed by Rangaswamy and another, the schedule property described in the plaint measures about 65ft x 117 ft. The suit is filed for a direction to the defendants to pay the current and future mesne profits at a rate determined by the Court. In addition, there is also a prayer that the defendants shall pay a sum of Rs. 33,752/- to the plaintiffs. The liability of the defendants - was - stated as joint and several, as per Para 11 of the plaint.
3. The relevant facts are that the plaintiffs by series of transactions became the purchasers of. the property described in the schedule to the plaint.
The first defendant, M/s.Mysore Arts and Wood Works was the lessee of the said property along with the other properties. There is no dispute that one M.Subbaiah was the original owner of a vast extent of land near Lalbaugh, Bangalore. He granted a term lease for 50 years in favour of one Hassan Ismail Bhai Lalljee under a registered Sale Deed dated 26.10.1922. This lease was in respect of a part of the land owned by him. The lease pertains to over 6 acres of land. In the year 1923, Hassan Ismail Lalljee mortgaged his leasehold interest in favour of State Bank of Mysore, Bangalore. The State Bank of Mysore filed a suit and obtained a decree and subsequently the lessee's interest was put for sale and the Bank purchased the same. The sale was confirmed in the year 1941. Thereafter, the interest of the lessee was transferred to the first-defendant, M/s.Mysore Arts and Wood Works Ltd., (for short 'Mysore Arts').
4. According to the plaint averment there were certain transactions and ultimately a part of the land originally belonging to Subbaiah came to be vested in the plaintiffs - Rangaswamy and Krishnaswamy, which already stated is described in the schedule to the plaint. The plaint also refers to another series of transactions under which another part of the property, which originally belonged to Subbaiah came to be vested in the first - defendant herein as well as a few others. Smt.Jalajakshi, who is the plaintiff in the connected suit became the owner of a part of such property, which is the subject -matter of the suit filed by her.
5. The plaint further states that defendants - 2 to 6 are the sub-tenants under the first defendant and they do not have independent rights and that they are liable to answer the plaintiffs' claim in the same as the first - defendant. According to the further averment in the plaint, the tenancy of the first - defendant stood determined on the expiry of 25th October 1972, and thereafter the position changed materially. The plaintiffs asserted that no rents were tendered to the plaintiffs nor was any rent received by the plaintiffs and that all the rights under the leasedeed dated 26.10.22 became extinguished and the relationship between the landlords and tenants ceased to exist after 26.10.1922, Thereafter, the possession of the first - defendant became unlawful. No lawful relationship continued to exist between the plaintiff and the first - defendant. Since the first defendant continued to be in unlawful possession, the plaintiffs are entitled to claim damages, Since the defendants 2 to 9 are the sub-tenants they are also liable to pay damages along with first-defendant jointly and severally. The cause of action for the suit is stated to have arisen from 26.10.1972, as per Para-12 of this plaint.
6. The 4th Defendant M/s.Southern Roadways Pvt. Ltd (for short 'D-4') denied the plaint - averments and also denied that the plaintiffs have become successors in interest of Subbaiah in respect of the suit schedule property. This defendant further points out that the plaint does not indicate as to which of the defendants is in possession of the portions of the suit property. The plaint schedule property is a small portion of a vast area and there is no proper identification of the suit property. The 4th defendant claims to be a lessee under the first defendant in respect of several portions of the property held by the first defendant and that this defendant is not answerable to the plaintiffs claim. According to this defendant it has been paying rents to the first defendant in terms of the lease deed under which the 4th defendant has taken the lease hold described in the said lease deed. Under the terms of the lease deed dated 25.5.60 the 4th defendant is liable to pay the annual rent of Rs. 3,600/- i.e.. at the rate of Rs. 300/-per month to the first defendant and the lease was for a period of 20 years with an option to renew for a further period at the option of the said defendant No. 4. The lease deed permitted the defendant to put up additional buildings in the property. According to this defendant, it had obtained another lease from the first defendant in respect of a portion described in the Schedule 'B' to the written statement. This lease was executed on 10th June 1970 for a period of five years from 1.5.70. The written statement also refers to one more lease deed dated 12.6.70 for a period of five years. In para 11 this defendant pleaded that the suit was not maintainable and the plaintiff's remedy, if any, is to seek possession under the Karnataka Rent Control Act and that this defendant has been a lawful sub-tenant. Schedules 'A', 'B' and 'C' to this written statement gives particulars of the lease hold portions held by this defendant.
7. The 2nd defendant - M/s. Jaykeyyes Auto Works also filed its written statement. It denied any contractual or quasi - contrictual relationship with the plaintiff. It claims to be a tenant under the 6th defendant. The written statement of the first defendant also denies the allegations made in the plaint. The first defendant is not aware as to how the plaintiffs have derived their title to the property in question. The various transactions referred to in the plaint were not known to this defendant. In Para 11 of this written statement there is an assertion of ownership in respect of the property.
8. The 6th defendant in the written statement also expressed lack of knowledge about the status of the plaintiffs. This defendant obtained a vacant premises from the first defendant on a ground rent of Rs. 135/- per month and built workshop at a cost of Rs. 35,000/-. According to this defendant, Smt.Jalajakshi also has claimed the same property as belonging to her.
9. The first defendant is the same in the suit filed by Smt.Jalajakshi. The 4th defendant M/s.Southern Roadways Pvt. Ltd. in the earlier suit is the 2nd defendant herein. There are, in all, six-defendants to this suit filed by Smt.Jalajakshi. The plaint averments are almost substantially the same. She also claims damages and asserts that defendants 2 to 5 in her suit are the sub-tenants under the first defendant, and that they do not have independent rights and that the position changed materially after 25.10.72, because the term-lease in favour of the first defendant stood determined on the said date.
The schedule to the plaint indicates that the extent claimed by Smt.Jalajakshi measures 65 ft. X 118 ft. The defence is also same and we need not repeat them.
10. There was a common trial and a common Judgment. The issues framed by the trial Court are as follows;
"1. Whether the suit property originally belonged to M.Subbaiah?
2. Whether M.Subbaiah had leased the suit property to Hassan I small Bhai Lalljee under Registered lease deed dated 26.10.1922?
3. Whether the Plaintiff proves that she has become the successor in interest of M.Subbaiah by series of transactions and the suit O.S.34/37-38 on the file of the District Judge, as alleged in Para 5(a) to 5(g) of plaint?
4. Whether the plaintiff proves that I defendant has succeeded to the lease hold interest of Hassan Ismail Bhai Lalljee by series of transactions as alleged in para 7(a) to 8(f) of plaint?
5. Whether the plaintiff proves that 1st defendant attorned the tenancy in her favour?
6. Whether the defendants 2 to 5 are only sub-tenants under 1st defendant?
7. Whether lease terminated by efflux of time?
8. Whether the possession of defendants 1 to 5 is unlawful?
9. If so are the defendants 1 to 5 jointly and severally liable to pay mesne profits or damages as claimed by the plaintiffs?
10. Whether 1st defendant acquired title to suit property by its purchase from State Bank of Mysore?
11. Whether 1st defendant has perfected title by adverse possession as alleged at Para 11 and 12 of its written statement.
12. Whether the suit is bad for non-joinder of State Bank of Mysore?
13. Whether the plaintiff proves that the defendants 1 to 5 are in lawful occupation of the suit premises?
14. If so are they liable to Rs. 33,748/-?
15. Whether defendants 4(a) and 4(b) proves that the suit is not maintainable in view of the provisions of the Karnataka Rent Control Act?
Issues framed in O.S.No. 850/80 1.1 Whether the suit property originally belonged to M.Subbaiah?
2. Whether M.Subbaiah had leased the suit property to Hassan Ismail Bhai Lalljee under registered lease deed dated 26.10.1922?
3. Whether plaintiffs prove that they have become the successors in-interest of M.Subbaiah by series of transactions and the suit O.S.34/37-38 on the file of the District Judge, Bangalore, as alleged in Paragraphs 5(a) to 5(g) of the plaint?
4. Whether the plaintiffs prove that the 1st defendant has succeeded to the leasehold interest of Hassan Ismail Bhai Laljee by series of transaction as alleged in Paras 7(a) to 7(f) of the Plaint?
5. Whether the Plaintiffs prove that the 1st defendant attorned the tenancy in their favour?
6. Whether defendants 2 to 6 are only sub-tenants under 1st defendant?
7. Whether the lease has terminated by efflux of time?
8. Whether the possession of defendants 1 to 6 is unlawful?
9. If so, are the defendants 1 to 6 jointly and severally liable to pay mesne profits or damages as claimed by the plaintiffs?
10. Whether 1st defendant acquired title to the suit property by its purchase from the State Bank of Mysore?
11. Whether 1st defendant has perfected title by adverse possession as alleged at paras 11 and 12 of its written Statement?
12. Whether the suit is bad for non-joinder of State Bank of Mysore?
13. Whether the Plaintiffs prove that the rate of damages or mesne profits claimed by them just and reasonable?
14. Whether the 4th defendant has been paying rents to the 1 st defendant and has also paid house-tax to the corporation, and income tax on account of the 1st defendant?
15. Whether the plaintiff's suit without seeking the relief of declaration of title and possession is maintainable?
16. What is the effect of the Karnataka Rent Control Act on the plaintiffs claim in the suit?
17. What is the relief, if any, the plaintiffs are entitled to?
18. What Order?".
11. The trial Court found that the property originally belonged to Subbaiah and the respective portions claimed by the plaintiffs came to be vested in them, as stated in the respective plaints. It also found that the 1st defendant succeeded to the lease interest of Hassan Ismail Bhai Lalljee and that the 1st defendant attorned the tenancy in favour of the plaintiffs and that defendants 2 to 5 are the sub-tenants under the 1st defendant. (In O.S.No. 849/80). it further found that the lease stood terminated by efflux of time. However, it held that the possession of the defendants is not unlawful. It further held that the defendants are not liable to any mesne profits or damages as claimed by the plaintiffs. The claim of adverse possession of the 1 st defendant was negatived, the suit was not bad for mis-joinder of parties. The suit is held to be not maintainable in view of the provisions of the Karnataka Rent Control Act.
12. Many of the facts need not be repeated because they are undisputed. As on to-day, there is no dispute about the title of the plaintiffs. There is also no dispute that the first defendant was the lessee and the other defendants are the sub-tenants. If the suits are held to be maintainable only then other questions would arise for consideration.
13. We have to note here that during the pendency of these suits Smt.Jalajakshi filed an eviction petition against the first-defendant -M/s.Mysore Arts and Wood Works, as per H.R.C. No. 270/75.
Subsequently, in the year 1979 the parties seem to have entered into a compromise and on the said basis an application was filed into the Court. Ext.P.26 is the copy of the order dated 5.3.1979 made by the Court under the provisions of the Rent Control Act. The order reads thus:-
"C.R.No. 8063/24/11/1979 Sri B.H.Ramaswamy In the Court of the IV Additional Civil Judge, Bangalore City.
Present;- Sri S.Ananthamurthy, B.Sc., B.L., IV Addl. Civil Judge, Dated this the 5.3.1979 H.R.C. No. 270/75.
Petitioners: Smt. B.H.Jalajakshi, daughter of late Sri T.Hiriyannappa, Hindu, Major, residing in No. 64, 2nd Cross Road, Surveyor Street, Basavanagudi, Bangalore-4. v. Respondent: M/s. Mysore Arts & Wood Works, a private Limited Company registered under the Mysore Companies Act, 1938, represented by its General Manager, Lalbagh Fort Road, Bangalore City.
Petition filed on 9.7.1975 by Sri M.Ranga Rao, Advocate for the petitioner. Petition under Section 21(1)(a) f,h,d,i., of the KRC Act praying for an order directing the respondent to quit and deliver vacant possession of the petition schedule premises for the reasons set out in the petition with costs.
xxx xxx xxx 5.3.1979 Petitioner by Sri M.R.R. Respondent by Sri C.S.D. ORDER The respondent and both counsel present. They filed a compromise petition admit vakalath. After perusing the records this Court is satisfied that the need of the petition is reasonable and bonafide. Hence the compromise is accepted or lawful. The petition is allowed and under Section 21(1)(H) of the Act and terms of the compromise petition. Respondent to vacate should be 6 months from to-day as agreed upon. Each party to bear his a her own costs."
Thus, an order of eviction under Section 21(1)(H) of the Rent Control Act came to be made as against the first defendant. Similarly, Rangaswamy and another, (plaintiff in the other suit O.S.No.350/75) filed H.R.C.No. 271/75 against the first defendant and an identical order was made by the same Judge, as per Ext.P.27. in other words, the said plaintiffs also obtained an order of eviction against the first -defendant M/s Mysore Arts and Wood Works, under Section 21 (1 )(H) of the Karnataka Rent Control Act, as per the compromise petition.
14. Mr.Ranga Rao, learned Counsel for the appellants contended that the moment there was an order of eviction against the first defendant, the entire jural relationship ceased to exist between the parties and thereafter the possession of the first defendant as well as of other defendants became unlawful and therefore, they are liable to pay the damages as claimed in the plaint.
15. The Decision , Smt. Chander Kali Sail and Ors. v. Jagadish Singh Thakur and Anr.. is cited in this connection. At Page 2264, the Supreme Court observed as follows:
"On a plain reading of the definition aforesaid it is clear that a tenant even after the termination of his contractual tenancy does not become an unauthorised occupant of the accommodation but remains a tenant. It has been pointed out by this Court in Damadilal v. Parashram. that such a tenant is conveniently called a statutory tenant. Whether the expression aforesaid borrowed from the English Law is quite apposite or not, but, what is certain is that a person continuing in possession of the accommodation even after the termination of his contractual tenancy is a tenant within the meaning of the Act and on such termination his possession does not become wrongful, until and unless a decree for eviction is made. If he continues to be in possession even after the passing of the decree, he does so as a wrongful occupant of the accommodation."
There is a clear statement in the above observation that continuance in possession by the erstwhile tenant after the decree for eviction is wrongful. Therefore, Mr.Ranga Rao contends that the first defendant is liable to pay damages at least from the date of Exts.P.26 and P.27. This apart, Mr.Ranga Rao also relied on the Decision in Bhoolchand and Anr. v. Kay Pee Gee Investments and Anr., to contend that the sub-lease without express written consent of the landlord was unlawful and, therefore, the sub-tenants cannot be recognised for any purpose and their possession will be entirely illegal.
16. During the relevant period of the sub-lease obtained by the Fourth defendant, Mysore Rent Control Act, 1951, was in force. Section 8(2)(iii) stated that, if the Court is satisfied that the tenant has in the absence of a contract with the landlord to the contrary after commencement of the said Act without the written consent of the landlord transferred his right under a lease or sub-let the entire premises or any portion thereafter, an order of eviction shall be made. According to Mr.Ranga Rao this provision makes it mandatory to obtain the written consent of the landlord for grant of sub-leas after the Act came into force.
17. To sustain this contention, the aforesaid Bhoolchand's case was cited. In the said case, the tenant had sub-let the premises involved therein in the year 1948. On the date of the sub-lease the contractual period of lease had expired. Under the contract, the tenant was entitled to sub-lease the premises. Since on the date of the sub-lease the contract period had expired, the Supreme Court held that there was no consent of the landlord for sub-letting the premises. The premises involved in the said case was governed by the provisions of Bangalore House Rent and Accommodation Control Act, 1946. The relevant Section 9(2) provided for the eviction on the ground "that the tenant has, after commencement of this Law without the written consent of the landlord - (a) sub-let the entire building or any portion thereof...." This was held as requiring the written consent of the landlord for sub-letting, if no written consent is obtained the sub-lease would be unlawful. '
18. The observation of the Supreme Court at Page 2061 (M/s. Bhoolchand's case), reads thus:
"It is, therefore, clear that the written consent of the landlord for sub-letting was necessary under the relevant statute applicable on 1.4.48 when the sub-letting was made in the present case. In fact, this requirement of written consent of the landlord was the basis on which both sides argued the case and the main thrust of Dr.Chitale's argument was that such a written consent was to be found in the letter dated 4.10.1943 of the original lessor. We have, earlier, indicated that the landlord's consent in the aforesaid letter dated 4.10.1943 was not available on 1,4.1948 after expiry of the contractual tenancy. The rest is only a logical corollary to this conclusion leading to the inevitable result that induction of the sub-tenant M/s Super Dry Cleaners w.e.f. 1.4.1948 by the tenant M/s.Bhoolchand Chandiram was unlawful being made contrary to the provision of law then in force which constitutes the ground for eviction contained in Clause (f) of Sub-section (1) of Section 21 of the Karnataka Rent Control Act, 1961."
19. This Decision was relied upon by Mr.Ranga Rao to point out that the earlier Judgment of this Court rendered by Sri Somnath Iyer, J: (as he then was) in: LILLY STELLA RODRIGUES v. GIRIJA BAI AND ORS., 1968(1) Mys. L.J. 216 is no longer good law. In the said case, the sub-lease was granted in an area governed by a similar Madras Act under which the tenant was liable to be evicted, if the lessee transferred his interest even though the lease did not confer on him any such right, As per Section 21(1)(f) of the Karnataka Rent Control Act, if a sub-lease was granted earlier to the said Act, then a landlord was entitled to seek eviction, in case, such a sub-lease was contrary to the provision of any law in force at the time of the sub-lease. It was contended that unless there was a specific bar against sub-letting, sub-lease cannot be held as "contrary to any provisions of law." A distinction was made between a cause of action enabling the landlord to seek eviction of the tenant when the sub-letting was made without the consent of the landlord and a case where there was a specific bar against sub-letting similar to Section 23 of the present Act of 1961. This contention was accepted by the learned Judge. It was held at Page 219, in Lilly Stella's case, referred to above, thus:-
"But, Section 7 of the Madras Act does not prohibit a sub-lease. On the contrary Sub-section (2) of that Section makes it clear that if the lease authorises a sub-lease, that sub-lease is within the power of the lessee. The restricted provision which that Section incorporates is a provision creating a right in the landlord to seek an order for eviction when a sub-lease which is not authorised by the terms of the lease is made by the lessee. In the absence of an express provision in the Madras Act prohibiting the creation of a sub-lease, the lessee has the power to make a sub-lease under Section 108(j) of the Transfer of Property Act, although the creation of that sub-lease, when exception is taken to it by the landlord, exposes the lessee to the risk of eviction under the provisions of the Madras Act. But if the landlord abstains from exercising his right to seek an order for eviction in that way, it cannot be contended that the sub-lease is either unenforceable or is unlawful so long as there is no eviction at the instance of the landlord. The sub-lease is a good sub-lease, there is the relationship of landlord and tenant. I should make a distinction between a sub-lease which creates a right in the landlord to seek eviction and a sublease which is contrary to law in the sense that it is statutorily prohibited. In the one case the creation of the right in the landlord has no other efficacy than to clothe him with the right to seek eviction if he elects to do so, but on the sub-lessee that right has no other impact. So long as it subsists, it is a good and valid sub-lease.
The expression, 'contrary to any provision of law' is an expression of wide import and the meaning to be given to that expression depends upon the context in which it occurs and the scheme of the statute in which it appears. In the context in which it appears in Clause (f) of Section 21 of the Mysore Act, I understand it as having reference to a sub-lease which is expressly lorbidden by any general or special law or a sub-lease which is inconsistent with any law then in force."
20. A comparison of the facts in Bhoolchand's case read with the relevant provisions considered therein, with the facts of Lilly Stella's case shows that there is a prima facie conflict between the two reasonings.
The Supreme Court has stated that the sub-lease effected without the written consent of the landlord will be an unlawful sub-letting so as to constitute a ground for eviction under Section 21(i)(f) of the Karnataka Rent Control Act, 1961.
We are bound by the observations of the Supreme Court, and, therefore, we are constrained to observe that the ratio of the Decision in Lilly Stella's case cannot be a good law.
But the above proposition by itself would not enable the plaintiffs in the present suits to get the reliefs sought by them.
As on the date of filing the present suits, there was no decree for possession obtained by the plaintiffs against the first defendant. They obtained consent decrees for eviction only in the year 1979. The respective plaints were not amended thereafter. Plaintiffs have not cared to make it a ground to seek damages or mesne profits. The present suits are based on the alleged cause of action of the year 1972, on the expiry of the term lease on efflux of time.
21. This apart, a question arises as to what extent the defendants other than the first - defendant, are bound by the compromise eviction orders obtained by the plaintiffs, as per Exts. P-26 and P-27. In case the sub-leases in favour of the sub- tenants were lawful for any reason, those sub-tenants will have their own rights to be safeguarded. Under Section 22 of the Karnataka Rent Control Act, 1961 a sub-tenant becomes a tenant directly under the landlord, if the interest of the main tenant stands determined, provided the sub-lease was lawful. In such a situation, the said sub-tenant can be evicted only by recourse to Section 21 of the aforesaid Act.
22. A learned Judge of this Court in ABDUL AZEEZ v. SAKAMMA, held that, "issue of sub-lease can only be adjudicated by the Court as defined under the Act and not by a Civil Court of general jurisdiction. Such issue can be adjudicated in the presence of so-called sub-tenant so as to bind him providing opportunity to have his say. In fact, Section 30 specifically states that notwithstanding anything contained in any other law, where the interest of a tenant is determined, for any reason and an order made by a Court for recovery of possession under this Act shall be binding on all persons who may be in occupation of the premises. The proviso states that nothing in this Section shall apply to any person who has an independent title to such premises. Mere fact of impleading of sub-tenant as a party to the proceeding will not oust the jurisdiction. Sub-tenant in whose favour sub-lease is created after coming into force of this Act, if otherwise lawfully permissible, gets relegated to the status of a tenant - vide Section 22 of the Act. fn sum and substance, issue as to whether sub-lease is with the consent or authorisation of owner or in contravention of Clause (f) exclusively lies within the jurisdiction of the Court as defined and by implication general jurisdiction of the Civil Court is deemed to have been ousted. If the decision referred to above is understood to have declared, in all cases, of sub-lease, it is only the competent Civil Court that can deal with the matter and not the Court as defined under the Act, with utmost respect, I am unable to subscribe to that view as it would be in clear contravention of the express provisions of the Act."
We are in respectful agreement with the above observations.
The Karnataka Rent Control Act is a special legislation. The rights and liabilities of the landlord and others coming within the purview of the said Act will have to be resolved by the forum created by the said Act. Question whether sub-tenants are lawful subtenants or otherwise, is a question to be decided under Section 21(1)(f) of the Karnataka Rent Control Act, 1961. It is contended that sub-tenants cannot plead anything which the main tenant is precluded from contending; it is further contended that sub-tenants are bound by the order of eviction made against the main-tenant. There is already orders of eviction against the 1st defendant which binds other defendants also. This argument, essentially is an argument regarding the executabiiity of the orders of eviction obtained by the plaintiffs, if were inducted as lawful sub-tenants, they derive independent rights under Section 22 of the Act and, therefore, they cannot be evicted along with the 1st defendant in the course of enforcing the consent eviction orders.
23. Whether a consent order for eviction is executable has to be tested in the light of the principles stated by the Supreme Court in ROSHAN LAL AND ANR. v. MADAN LAL AND ORS., This is a matter for the executing Court to consider.
24. Here, we are constrained to observe that the plaintiffs and the first defendant were not fair in entering into a compromise, when admittedly they knew that there are sub-tenants in possession of parts of the property. The plaintiffs have referred to these sub-tenants in the present suits and impleaded them as defendants, while proceedings for eviction were filed against the 1st defendant only after the filing of the present suits. The entitlement of the sub-tenants to come on record in an eviction proceeding against the main tenant, is beyond doubt.
25. In SOUTH ASIA INDUSTRIES PRIVATE LTD. v. SARUP SINGH AND ORS., Justice A.K.Sarkar held:
"I am not unmindful of the fact that where an order for recovery of possession of any premises is made under Section 14 against a tenant assigning or sub-letting without the landlord's consent, that order would under Section 25 of the Act be binding on all persons in occupation of the premises except those who have independent title to them. This Section does not however say that an order for recovery of possession against an assignee of a lessee cannot be made. It would not, therefore, support an argument that it was not intended that an order for recovery of possession could be made under Section 14 against an assignee or a sub-tenant. On the other hand, it seems to me that to an application under Clause (b) of the proviso to Sub-section (1) of Section 14 an assignee or sub-tenant, as the case may be, should be a property party. Under this provision an ejectment order can be made only when the assignment or sub-letting was without the consent of the landlord. If it was with such consent, the assignee or the sub-tenant would be protected by the Act. An assignee or a sub-tenant is, therefore, interested in showing that there was the requisite consent. They should hence be entitled to be made parties to the proceedings. Otherwise, if under Section 25 an eviction order obtained against the direct tenant is binding on them, they would be liable to be condemned without a hearing. It is no argument against this view that the direct tenant would protect them, for they cannot be made to depend on him for the protection of their rights. The direct tenant may be negligent or incompetent in his defence, he may even collude with the landlord or he may just not bother. If the assignee or the sub-tenant is thus entitled to be heard to oppose the order for eviction, that would be another reason for saying that an order for eviction could be made against them also, if they could oppose the making of the order, it would be unnatural to say that the order could not be made against them. In what I have said in this paragraph, I do not wish to be understood as holding that the order could not be made against them. In what 1 have said in this paragraph, I do not wish to be understood as holding that in view of Section 25 an order for eviction against a tenant is in fact binding on his assignee or sub-tenant. Such a decision is not necessary for this case. I wish, however, to point out that if Section 25 does not make the ejectment order so binding the appellant cannot resort to it for any assistance."
Concurring, Justice Bachawat, held at page 352:
"Both the tenant and the assignee were properly parties to the proceedings for possession, and if the tenant - company had not been dissolved, the Controller would have been competent to make the order for possession."
26. A learned Judge of this Court held, in YAMUNA v. A.RAMA AMIT, 1982 (2) KLJ 113 that a person claiming to be a lawful sub-tenant is entitled to be heard before an order of eviction is made in a proceeding filed against the main-tenant alone.
27. Earlier, in Messrs. IMPORTERS AND LTD v. PHEROZE FRAMROZE TARAPOREWALA AND ORS., also it was held that a sub-tenant will be a proper party, though not a necessary party. Mr.Ranga Rao wants us to emphasis the observation made at Page-75 in this regard, which reads thus:
"Apart from that Section, under the ordinary law a decree for possession passed against a tenant in a suit for ejectment is binding on a person claiming title under or through that tenant and is executable against such person whether or not he was or was not a party to the suit. The non-joinder of such a person does not render the decree any the less binding on him. It is in this sense, therefore, that he is not necessary party to an ejectment suit against the tenant. It is, however, recognised that such a person is, nevertheless a proper party to the suit in order that the question whether the lease has been properly determined and the landlord - plaintiff is entitled to recover possession of the premises may be decided in his presence so that he may have the opportunity to see that there is no collusion between the landlord and the tenant under or through whom he claims and to seek protection under the Act, if he is entitled to any. Such a person may be joined as a party to the suit from the beginning of the suit or at any later stage of the suit if the Court thinks fit to do so."
This Decision was referred to in the subsequent decision, which we have already quoted. (South Asia Industries Pvt. Ltd. case.) The above observations were in the context of the ordinary law and the Supreme Court pointed out that ordinarily the sub-tenant is bound by the decree obtained against the main tenant. However, the Supreme Court has nowhere laid down that inspite of the statutory right of sub-tenant, he can be made bound by an order of eviction obtained against the main tenant.
A person claiming to be a sub-tenant is, thus certainly entitled to come on record, the landlord also may implead him as a party to the proceeding. Under a particular set of circumstances, non-impleading of such a sub-tenant may result in rendering the eviction order useless and unexecutable, against them.
28. In the present suits, nowhere the plaint asserts that the sub-leases were unlawful. The suits rely on the alleged right accrued to the plaintiffs consequent on the determination of the main lease by efflux of time. Further, the eviction proceedings were filed invoking Clauses (a), (f), (h), (d) and (i) of Section 21(1); but the final orders based on the compromises were only under Section 21(1)(h); the implication is that the cases of unlawful subletting were not pursued at all by the plaintiffs. Therefore, it is not possible to uphold the claim of the plaintiffs for damages and mesne profits as pleaded and made out by the plaintiffs.
29. One more question pertains to the frame of the suits. The plaintiffs have claimed a decree against the defendants fastening a joint and several liability on them, Admittedly, different sub- tenants are in possession of different portions. Even assuming the possession of a sub-tenant is unlawful, the liability of such a sub-tenant cannot extend beyond the extent of the land or the premises in occupation of the said sub-tenant This is not a case where it is possible to hold that all the defendants are joint tort-feasors. Each of the sub-tenant may be jointly and severally liable to the extent of the premises held by him along with the first defendant. To foist the liability of every sub-tenant in respect of the entire premises will be to attribute a larger and higher tortious act to each of the defendants. Further, the plaintiffs have not identified the respective portions in possession of various sub-tenants. Without identifying the said portions, it will be legally not possible to impose damages on the defendants for the entire premises.
It is not necessary for us to consider, in these proceedings, the plea of Mr.Padubidri Raghavendra Rao that the 4th Defendant has become a deemed tenant under Section 22 of the Karnataka Rent Control Act, 1961.
However, we make it clear that the respective contentions regarding the lawful nature of the sub-tenancies and the lawful nature of the possession of the respective parties are left-open in these suits. Any other finding of the trial Court which we have not specifically referred, shall be considered as left open. These suits are dismissed as not maintainable. The suits are dismissed for the reasons stated above resulting in the dismissal of these Appeals without any order as to costs.