Madras High Court
Sonmull And Sons vs M.D. Dhanalakshmi And Anr. on 11 September, 1986
Equivalent citations: (1987)1MLJ465
ORDER M.N. Chandurkar, C.J.
1. These two revision petitions arise out of a common judgment given in two appeals by the Court of Small Causes, Madras as an appellate authority under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act).
2. The landlords, Mrs. Dhanalakshmi and Kumaradoss are the widow and son respectively of one Devadoss, who was the son of one M.K. Sundaramier. The petitioned property which is a house bearing door No. 77, Narayana Mudali Street, Madras was the joint family property of Sundaramier and his son Devadoss. In a suit filed for partition and possession of the half portion as heirs of deceased Devadoss the landlords were held entitled to possession of the northern half of the house in dispute the southern half having gone to the share of Sundaramier. It appears that in execution proceedings, the tenant Sonmull and Sons who is the revision petitioner in C.R.P. No. 2056 of 1983 and one Rasiklal A. Shah, obstructed the execution proceedings and the decree-holders, the present landlords, filed a petition under Order 21, Rules 96 and 97, C.P.C., on 14th October, 1977. In these proceedings, an endorsement was made on behalf of the decree holders, landlords, that the obstructors had agreed to attorn the tenancy In respect of the decree-holder's southern half share and therefore a symbolical delivery may be ordered Accordingly, on 14.11.1977, the Court made an order that the decree holders can take symbolical possession as against the obstructors.
3. Even before 14.11.1977, the landlords had given a notice as far back as 27.11.1976 to Sonmull and Sons that there was a partition suit in which the present landlords had been allotted by the final decree dated 19.11.1975 the northern half of the house and that they were therefore entitled to 50 per cent of the rent, i.e., Rs. 312.50 from 19.11.1975, onwards. The rent for the entire premises was Rs. 625. The tenant, Sonmull and Sons was intimated that any payment made to Sundaramier after 19.11.1975 will not be binding on them. In the same notice, the tenant was also told that the landlords required the building for their own occupation for residence and business and that they did not own any other building in the City of Madras. This notice is Ex. P1 dated 27.11.1976.
4. The landlords again served a notice dated 24.4.1981 stating that Kumaradoss, son of Devadoss, petitioner No. 2 (in the eviction petition) had lost his father when he was still a baby and that he was brought up by his uncle with whom he was staying. It was stated that Kumaradoss was required to visit Madras often for the purpose of his own business which he has set up and has to reside in lodging houses. He therefore wanted to reside in Madras in his own house. An averment was made that though the tenant had agreed to vacate the premises, he had not done so though more than three years had passed. An allegation of sub-letting was also made, without the consent of the landlords in favour of respondents 2 and 3 (in the eviction petition). Thus, the tenancy of the tenant was terminated in respect of premises No. 25/1, Narayana Mudali Street, which was the premises owned by the landlords. It may be stated that the tenant had already purchased the other half of the premises which belonged to Sundaramier.
5. Later the landlords filed a petition under Sectioins 1O(2)(i)(a) of the Act repeating the allegations which were made in the notice. The case sought to be made out was that petitioner No. 2, was carrying on business in Madras because all the customers of the products which he was dealing in were in Madras and that the mother, petitioner No. 1 also desired that they should all stay in Madras. An allegation of illegal sub-letting in favour of the 2nd and 3rd respondents was also made. The tenant, first respondent, did not dispute the fact that he had not taken the previous consent of the landlords for sub-letting the premises. What was, however, stated was that the previous landlord Sundarmier had given a blank permission to the tenant to sublet. This letter Ex. R2 is dated 14.6.1958 which reads as follows:
As already discussed, I agree to your, subletting a portion in the premises to any good party/parties at your choice on the firm understanding that you should be in a position to evict him/them and deliver to me such portions whenever I need. Costs, if any, incurred on this account, will by borne by you fully. You may carry out any minor alterations in the premises for your convenience at your costs.
The claim of the landlords on the ground of bona fide need for owner's occupation for residential and non-residential purposes was disputed A on the ground that the claim is not a bona fide one. Apart from the oral evidence given by the second respondent who filed an independent counter-statement, he took the stand that the subletting was authorised in writing, according to the first respondent and that the same was binding on the landlords. The need for owners' occupation was also denied. So far as the third respondent was concerned, he sought dismissal on the ground that his description in the petition was wrong, since Oswal was the name of his community and not his name. He, however, admitted that he was a tenant of the premises No. 25, Narayana Mudali Street, and was not aware of any premises as No. 25/1, Narayana Mudali Street, Madras. He also relied on the written consent put forth by the first respondent. It may however be stated here that even when he signed the vakalat, the 3rd respondent described himself as Oswal, the 3rd respondent and he has also signed as Oswai. In any case, the identity of the 3rd respondent is not in doubt as being a person in occupation of a part of the premises in dispute.
6. Before the Rent Controller, apart from oral evidence, the landlords filed several order forms of Ganga Engineering Co., which was the trade name in which petitioner No. 2 was carrying on his business, starting from 1973 to February 198a
7. The Rent Controller took the view that the averment made by the landlords that the first respondent has now sublet some portions without the written consent of the petitioners has gone unchallenged and that this allegation has not been the ground of bona fide requirement, the Rent Controller held that if the case of the landlords was correct that they were staying in No. 8, Avadhanam Papier Road, from December, 1980 onwards in the petition filed in the month of August, 1981, the. petitioners would have given the Madras address, whereas the address given by them was their Madurai address, i.e. No. 3, Mahal first Street, Madurai. On the basis of this the Rent Controller held that the pleadings were inconsistent inasmuchas they would be residing at Madurai in 1981 and not at Madras. Consequently, the Rent Controller rejected the receipts Ex. P7, series and commented adversely on the conduct of the landlords, who, according to him, had put up a false claim that they are living in a rented building. Further, the Rent Controller held that there was nothing to show that the second petitioner was doing business in Madras and that he had not taken any steps to set up business in Madras. He went to the extent of holding that there was no evidence to show that the second petitioner was carrying on his partnership business at Madurai on the date of filing the eviction application. The order form Exs. P8 and P9 series, as well as the bills from the lodging houses, showed according to the Rent Controller, that the second petitioner had not obtained any order subsequent to February, 1980. Relying on the fact that Exs. P9 and P10 series were only for the period upto December, 1980, the Rent Controller held that if really the second petitioner had been visiting Madras he would have produced some documents for the period subsequent to the application. Consequently the claim under Section 10(3)(a)(iii), of the Act was rejected.
8. Against this order, both the tenant and the landlords filed two appeals. The tenant filed an appeal against the order of eviction on the ground of subletting and the landlords filed an appeal against the order rejecting their claim for owners occupation. These two appeals are R.C.A. Nos. 796 and 1166 of 1982 respectively.
9. The appellate authority confirmed the finding given by the Rent Controller that the permission granted by the previous owner would not bind the present owners. With regard to the claim under Section 10(3)(a)(i) and (iii) the appellate authority, however, proceeded on a misapprehension that the owner of the building in which the second petitioner was staying at Madras' on payment of rent was examined. According to the appellate authority, nothing was mentioned in the petition itself about the petitioners living in Choolai, Madras. The receipts Ex.P7 series were rejected on the ground that while the receipt dated 20.12.1980 has a date under the signature of the house, the other receipts do not have similar dates and in any case according to the appellate authority the case that the landslords are staying in Choolai, Madras, is contrary to the clear statement in the petition. The absence of a ration card was referred to and the explanation given by the landlords that they have given only their permanent Madurai address in the petition where they were running business, was rejected. Thus, the appellate authority confirmed the finding that it is not proved that the landslords were living in Madras. The appellate authority further went on to consider whether the landlords were really carrying on business. Observing that even if one step had been taken by the petitioners for carrying on their business, that would be sufficient, the appellate authority found that Ex. P8 series contained an order form dated 14.2.1980 which was the last order form and there was no order form for the year 1981. With regard to the lodging bills they were found to be for the years 1977 to 1980. It was argued before the appellate authority that for a commission agency business, no elaborate preparation is necessary and only a telephone and a table are enough. The appellate authority, however, held that there was no profession tax receipt to show that the second petitioner was really carrying on a commission agency business. The evidence of the second petitioner that he would commence his business as soon as he gets possession, was read as merely indicating his desire to start the business. It was stated that it was not known whether P.W. 1 had applied for a phone connection. In view of these circumstances, the, appellate authority confirmed the finding recorded by the Rent Controller.
10. Two revision petitions have been filed against this common order, C.R.P. No. 2092 of 1983 is filed by the landlords and C.R.P. No. 2056 of 1983 is filed by the tenant.
11. It is contended on behalf of the tenant in these revision petitions that the permission dated 14.6.1958 given expressly by Sundaramier to sublet the premises would be binding on the present landlords also and consequently the landlords werenot entitled to an order of eviction on the ground that there has been an unauthorised subletting. Reference has been made to the decision of a Division Bench in Somasundara Mudaliar v. Madras Prov. Coop. Hr. Soc. Ltd. in which the Division Bench has taken the view that if the original landlord had given his written consent, then the successor or the assignee of the said landlord would be bound by that consent, and that such a succeeding landlord cannot be heard to say that after the accural of rights in his favour, the tenant had again to obtain his written consent. It is clear from the provisions of Section 10(2)(ii)(a) of the Act that if the tenant had 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, the landlord has a right to evict such a tenant. In other words, transferring the right under the lease or subletting the leased premises or any portion thereof, without the written consent of the landlord if the lease does not confer on the, tenant any right to transfer the right under the lease or to sublet the premises gives rise to a cause of action for the landlord to ask for eviction of such a tenant. There is also no doubt that the Division Bench in Somasundara Mudaliar's case (1950) 1 M.L.J. 655, has held that if the erstwhile landlord at the material time when the premises were sublet had given a written consent to the tenant, to sublet the premises, Or a part of the premises, the tenant is not entitled to obtain a fresh consent of the new landlord who may have succeeded the original landlord either as a result of inheritance or as a result of transfer of the leased property, in his favour either by sale or otherwise. If in the instant case, the tenant had succeeded in establishing that the premises had been leased even prior to the notice dated 27.11.1976 when the tenant-respondent No. 1 was clearly informed that the northern portion of the suit property had ' been allotted to the share of the landlords, then the landlords were not entitled to evict the tenant. However, there is no material to show that the tenant had already sublet the premises to respondents 2 and in accordance with the omnibus permission said to have been given on 14.6.1968 by Sundaramier either immediately after 1958 or in any case before the tenant was clearly informed that the landlords had become owner of half of the property as a result of the decree of the civil Court. The landlords had clearly averred in their petition that the tenant has without their permission illegally sublet the upstairs portion to the second respondent. Such an averment was made also in the notice dated 26.4.1981. This notice has been replied to. Even in the counter statement it is not stated as to when exactly the sub-lease was created. All the three respondents are significantly silent about as to when the sub-lease was created and when respondents 2 and 3 entered the premises as sub-tenants. Where an allegation is made that premises have been sublet without the consent of the landlord, and there is in fact no consent of the landlords who makes such an allegation, the burden will be on the tenant to prove as to when he sublet the premises and that he had done so with the permission of the erstwhile landlord. The making of a bold statement that Sundaramier had granted written permission to sublet the premises is of no consequence in the instantcase. When the tenant has been specifically informed by the notice dated 27.11.1976 that the landlords have become the owner of the northern portion, the tenant could escape the rigour of Section 10(2)(ii)(a) of the Act only if he was able to show that he had already sublet the premises prior to 27.11.1976, arid that was done with the written consent of the original landlord. Mere production of document dated 14.6.1958 did not therefore absolve' the tenant from proving that the premises were sublet before the present landlords became owner of the property. The second petitioner has positively stated in his evidence that "Now. R1 has sub-leased". In spite of this positive statement, Pannalal R.W. 1 who was examined on behalf of the tenant has made no attempt to challenge this statement. It is not even suggested in cross examination of P.W. 1, that the tenants have been even before the landlords became owner of the northern portion of the property. It is undoubtedly true that the obstruction proceedings referred to Rasiklal M. Shah. But, the obstruction has taken place sometime in October, 1977, and even assuming for a moment that Shah was a sub-tenant in October, 1977 that cannot be of much assistance because his subtenancy would be protected only if it was created prior to 27.11.1976.
12. It is undoubtedly argued that the consent given by the grandfather of the second petitioner would not be binding on the landlords because according the Learned Counsel appearing on behalf of the landlords, a suit had already been filed in 1963 and therefore if subletting had taken place after 1963, that could not be done in pursuance of the consent given only by the grandfather of the second petitioner. It is not possible to accept this contention, because though' a separation of interest in the joint family property had taken place between the grandfather and the grandson, the grandfather continued to be the manager of the property and it is not the case of the second petitioner that pending the suit any specific arrangement was made with respect to management of the property. In any case, it is clear 'that so far as the third respondent is concerned, his presence is not established at the time of obstruction proceedings and it is therefore clear that the premises have been sublet in any case after November, 1977, to him. Even that is enough to enable the landlords to evict the tenant on the ground that the premises had been sublet without the permission of the present landlords.
13. Reference was made on behalf of the landlords to the decision of this Court in Jagadisa Mudaliar v. Angappa Mudaliar (1966) 79 L.W. 615, in which the Court had taken the view that where there is a change in the subtenancy and when new persons are introduced into the premises by the main tenant he should obtain the written consent of the landlord for subletting the premises, and even assuming that the original agreement permitted the main tenant to sublet the premises, that agreement would not bind the subsequent purchaser of the premises. This decision is not of much assistance so far as the present case is concerned, because this is not a case in which there was a written, consent in respect of a sub-tenant and that after one sub-tenant left, another person was inducted as a sub-tenant.
14. Accordingly, it Is not possible to find any infirmity in the finding that the tenant had sublet the premises without the written consent of the landlords.
15. Now so far as the claim on the ground of owner's occupation is concerned, it is difficult to sustain the finding that the petitioners were not living in Madras since December, 1980. It is true that in the application it had been stated that both the petitioners were not living in Madras since December, 1980. It is true that in the application it had been stated that both the petitioners were residing at No. 3, Mahal First Street, Madurai. But, both the courts have overlooked the significance of the fact that this is followed by the words "now come down to Madras." If the contention of the respondent was that these words referred to coming down to Madras for the purpose of merely filing the application, then the respondent should have put this case positively to the second petitioner when he was in the witness box. In any case, it appears tome that both the authorities have attached undue importance to the fact that the petitioners have given their address as Madurai. The real question for consideration before the authorities was whether there was good justification for depriving the petitioners of the right to come and reside in Madras in the house which admittedly belongs to them. Unless the rent control authorities were satisfied that the proceedings were taken merely with a view to evict the tenants, the authorities could not have rejected the claim for owners' occupation on the ground that bona fides were lacking in their claim. The two authorities were dealing with the case of an owner of a property who was forced by circumstances to stay in Madurai with his uncle and to carry on business there and who now wanted to shift his business to Madras. The provision of the Act cannot be so construed as to force a person to stay with his uncle even though he wanted to carry on his independent business and for that purpose to stay in his own house in Madras. The second petitioner had produced receipts which were proved by the owner of the house in which they were staying. The evidence of the landlord of the second petitioner clearly shows that the second petitioner had often to go to other places and his mother and wife also used to go to Madurai once in two or three months. The evidence of P.W. 1 himself shows that his wife and mother would go to Madurai sometimes and he had positively made a statement that they were not permanently residina at Madurai. The several order forms show that the customers for the business which the second petitioner was carrying on are mostly from Madras. He has given the trade name as Ganga Engineering Company. He has also stated that he did commission business. It cannot be denied that whenever he came to Madras he used to stay in a lodge. The considerations which weighed with the two authorities that there is no ration card taken our at Madras or that he has not applied for a telephone connection or that he has not produced any professional tax receipt were hardly considerations relevant to deciding whether the second petitioner genuinely needed the premises which admittedly belonged to him for carrying on the business at Madras.
16. Though a ration card may be useful in proving the fact of the holder of the ration card residing at the address shown in the card, the absence of such a card does not necessarily prove that a person does not reside at any particular place or in a particular city. It is well known that proceedings for eviction of a tenant take a considerable number of years and a landlord, can never be sure whether he is going to succeed in the litigation. Therefore, it is difficult to see how the failure to make an application for a telephone connection can have any relevance for deciding the bona fides of the landlord. Same is the case of $n absence of payment of profession tax. There are any number of people who may not be paying profession tax, but that does not mean that they are not carrying on any business.
17. The appellate authority has observed that if P.W.I had taken at least one step for carrying on the business or made some preparation for carrying on the business in the city, that would have been enough. But it is difficult to appreciate what exactly the appellate authority meant when it observed that some preparations have to be made or that some steps have to be taken. As already stated, there is no certainty of the success of litigation before the Rent Controller, the second petitioner who normally stayed at Madurai, had undoubtedly business connections only in Madras and it is difficult to see how any preparations for carrying on a business in Madras could be made unless he is assured of a permanent residential accommodation. The evidence of the second petitioner has to be read in the light of the evidence given by the tenant himself. The tenant has denied all knowledge about the business of the second petitioner. He has not even cared to find out whether the second petitioner resides in the house in respect of which receipts have been filed and the landlord has been examined, In the absence of any rebutting evidence on the part of the tenant, it is therefore difficult to appreciate how the circumstances of not applying for a phone connection or not taking any steps for starting the business in Madras, can reflect on the bona fides of the second petitioner, it is obvious that no premises of his own being available and the second petitioner having his business started in Madurai he would continue to do his business at Madurai until his business could be successfully shifted to Madras. Assuming that the landlords were not staying in Madras, the fact that they were carrying on business at Madurai cannot therefore be put against the second petitioner. There is therefore no substance in the contention raised on behalf of the tenant that the claim made on the ground of owners' occupation was not bona fide. In my view, there is nothing to doubt the statement of the second petitioner that the business which he was carrying on in Madurai has to be shifted to Madras and that is why he required the premises belonging to him. Accordingly, the finding recorded, by both the authorities that the claim for owners' occupation and for business has not been proved will have to be set aside. Consequently, the revision petition filed by the landlords is allowed and the revision petition filed by the tenant is dismissed. The result is that the landlords will be entitled to possession on both the grounds on which the possession was sought. The landlords will get the costs of both the revision petitions. Costs Rs. 250 in each case.
18. On the tenant filing an undertaking that they will vacate, the premises within a period of four months without the landlords being required to take proceedings in execution, the tenant is granted four months time to vacate the premises. They shall vacate the premises on or before 15.1.1987. Undertaking to be filed within three weeks. If no undertaking is filed, the landlords will be entitled to execute the order for possession.