Madras High Court
M.Nirmal Kumar vs Amarth Kawar Bafna on 22 November, 2024
Author: N.Sathish Kumar
Bench: N. Sathish Kumar
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 14.11.2024
Pronounced on : 22.11.2024
CORAM
THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR
C.R.P.Nos.55, 63, 64, 65, 68 and 71 of 2024
1.M.Nirmal Kumar
2.Aarti Maheswari
.. Petitioners in CRP.Nos.55, 63 & 65 of 2024
Versus
1.Amarth Kawar Bafna
2.M/s.Style-Spirit
“Kapil Vastu”
Door No.213 & 214
Purasawalkam High Road
Purasawalkam, Chennai – 600 007
3. M/s.Poorvika Mobiles
“Kapil Vastu”
Door No.213 & 214
Purasawalkam High Road
Purasawalkam, Chennai – 600 007
4. M/s.Salai Enterpises
“Kapil Vastu”
Door No.213 & 214
Purasawalkam High Road
Purasawalkam, Chennai – 600 007
5.M/s.J.J.Mobile World
“Kapil Vastu”
Door No.213 & 214
Purasawalkam High Road
https://www.mhc.tn.gov.in/judis
2
Purasawalkam, Chennai – 600 007
6.M/s.Singapore Gold House
“Kapil Vastu”
Door No.213 & 214
Purasawalkam High Road
Purasawalkam, Chennai – 600 007
7.M/s.Mummy Fashion
Represented by its Proprietor Mr.Jaganathan
“Kapil Vastu”
Door No.213 & 214
Purasawalkam High Road
Purasawalkam, Chennai – 600 007
.. Respondents in CRP.Nos.55, 63 & 65 of 2024
1.M.Nirmal Kumar
2.Aarti Maheswari
.. Petitioners in CRP.No.64 of 2024
Versus
1.M.S.Yakubudeen
2.Amarth Kawar Bafna
3.M/s.Style-Spirit
“Kapil Vastu”
Door No.213 & 214
Purasawalkam High Road
Purasawalkam, Chennai – 600 007
4. M/s.Poorvika Mobiles
“Kapil Vastu”
Door No.213 & 214
Purasawalkam High Road
Purasawalkam, Chennai – 600 007
5. M/s.Salai Enterpises
“Kapil Vastu”
https://www.mhc.tn.gov.in/judis
3
Door No.213 & 214
Purasawalkam High Road
Purasawalkam, Chennai – 600 007
6.M/s.J.J.Mobile World
“Kapil Vastu”
Door No.213 & 214
Purasawalkam High Road
Purasawalkam, Chennai – 600 007
7.M/s.Singapore Gold House
“Kapil Vastu”
Door No.213 & 214
Purasawalkam High Road
Purasawalkam, Chennai – 600 007
8.M/s.Mummy Fashion
Represented by its Proprietor Mr.Jaganathan
“Kapil Vastu”
Door No.213 & 214
Purasawalkam High Road
Purasawalkam, Chennai – 600 007
.. Respondents in CRP.Nos.64 of 2024
1.M.Nirmal Kumar
2.Aarti Maheswari
.. Petitioners in CRP.No.68 of 2024
Versus
1.M/s.Mummy Fashion
Represented by its Proprietor Mr.Jaganathan
“Kapil Vastu”
Door No.213 & 214
Purasawalkam High Road
Purasawalkam, Chennai – 600 007
2. Amarth Kawar Bafna
3.M/s.Style-Spirit
“Kapil Vastu”
https://www.mhc.tn.gov.in/judis
4
Door No.213 & 214
Purasawalkam High Road
Purasawalkam, Chennai – 600 007
4. M/s.Poorvika Mobiles
“Kapil Vastu”
Door No.213 & 214
Purasawalkam High Road
Purasawalkam, Chennai – 600 007
5. M/s.Salai Enterpises
“Kapil Vastu”
Door No.213 & 214
Purasawalkam High Road
Purasawalkam, Chennai – 600 007
6.M/s.J.J.Mobile World
“Kapil Vastu”
Door No.213 & 214
Purasawalkam High Road
Purasawalkam, Chennai – 600 007
7.M/s.Singapore Gold House
“Kapil Vastu”
Door No.213 & 214
Purasawalkam High Road
Purasawalkam, Chennai – 600 007
.. Respondents in CRP.Nos.68 of 2024
1.M.Nirmal Kumar
2.Aarti Maheswari
.. Petitioners in CRP.No.71 of 2024
Versus
1.Lakshmi
2.Amarth Kawar Bafna
3.M/s.Singapore Gold House
“Kapil Vastu”
https://www.mhc.tn.gov.in/judis
5
Door No.213 & 214
Purasawalkam High Road
Purasawalkam, Chennai – 600 007
.. Respondents in CRP.Nos.71 of 2024
Prayer in CRP.Nos.55, 64, 65, 68 & 71 of 2024:- Civil Revision Petitions
filed under Section 115 of Code of Civil Procedure Code, to set aside the fair
and decretal order dated 26.09.2023 and made in E.A.No.10, 5, 11, 2 and 4 of
2023 in E.P.No.244 of 2023 in RCOP.No.485 of 2012 on the file of XI Judge
Small Causes Court, Chennai.
Prayer in CRP.No.63 of 2024:- Civil Revision Petition filed under Section
115 of Code of Civil Procedure Code, to set aside the fair and decretal order
dated 26.09.2023 and made in E.P.No.244 of 2023 in RCOP.No.485 of 2012
on the file of XI Judge Small Causes Court, Chennai.
For Petitioners : Mr.S.Vasudevan in all CRPs
For Respondents : Mr.L.Gavaskar for R7
in CRP.No.55,63 & 65 of 2024
for R1 in CRP.Nos.64 & 68 of 2024
Mr.E.Prabhu for R1 in CRP.No.71 of 2024
No appearance for R1
in CRP.Nos.55, 63 & 65 of 2024
No appearance for R2
in CRP.Nos.64, 68 & 71 of 2024
COMMON ORDER
These Revisions are filed challenging the order of the Executing Court https://www.mhc.tn.gov.in/judis 6 in allowing the application under Sections 47 read with 151 of Code of Civil Procedure, 1908 filed by the 7th respondent in the main RCOP and dismissing the connected execution applications.
2. The present revisions are filed by the landlords as against all the sub- tenants. The brief facts leading to filing of these revisions are as follows:
2.a. The revision petitioners/landlords have originally filed an eviction petition under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 ("Act" hereinafter) for eviction of the chief tenant as well as the sub tenants. Originally, the chief tenant was inducted as a tenant by registered lease dated 03.06.2001. The lease is for a period of 9 years. The chief tenant was given a right to sub-let in accordance with terms of the registered lease deed. The respondents 2 to 7 are the sub-tenants under the chief tenant/first respondent. According to the petitioner, though period of lease was expired on 31.12.2009 by efflux of time. The rent was enhanced between the parties later and tenancy continued. The first respondent has paid Rs.1,10,000/- as rent and subsequently failed to pay rent after 01.01.2004 and he has committed wilful default. Hence, the petitioner filed the eviction petition contending that the tenant has committed default to the tune of Rs.14,45,400/-.
https://www.mhc.tn.gov.in/judis 7
2.b. In the said eviction petition, besides the chief tenant, all the sub- tenants were made as a parties. The chief tenant has filed counter disputing the application, except the 7th respondent, other respondents have not filed any counter. It is the contention of the 7th respondent that he is the tenant under the first respondent in respect of his portion on a monthly rent. According to him, he has been paying the rent regularly to the first respondent and as no relief is sought against the 7th respondent, the petition is not maintainable. During the pendency of the RCOP.No.485 of 2012, an application has been filed by the landlord in M.P.No.245 of 2013 under Section 11(3) of the Act directing the chief tenant to pay a sum of Rs.28,72,760/- as arrears of rent. The said application is also opposed by the chief tenant. The application was allowed by the rent controller by order dated 10.01.2014 directing the first respondent to pay a sum of Rs.22,82,760/- as accumulated rental arrears (calculated at Rs.11,000/- per month from 01.01.2004 to 31.12.2006 and at Rs.29,150/- from 01.01.2007 till 31.12.2009 and thereafter at the same rate till May 2013 less the rental amounts paid by first respondent for such period and less excess rental advance of Rs.5,90,000/- on or before 28.01.2014 failing which all further proceedings in the main RCOP would be stopped and eviction of the respondents would be ordered.
https://www.mhc.tn.gov.in/judis 8
2.c. Challenging the said order, appeal has been filed in RCA.No.50 of 2014 by the chief tenant. The appeal has been dismissed confirming the fair and decretal order dated 10.01.2014 passed in MP.No.245 of 2013 in RCOP.No.485 of 2015. As against which, the chief tenant filed CRP(NPD).No.964 of 2020 before this Court. The contention made by the revision petitioner namely the chief tenant in the above CRP is that building is not in possession with the chief tenant, but the sub-tenants are in possession by the sub-tenant, the main RCOP is being contested by the sub-tenants, the chief is not interested in prosecuting. It is also submitted before this Court in the said revision that sub-tenants who are in possession neither paid rents from 2019 onwards nor vacated the premises. Therefore, he had filed an affidavit surrendering the tenancy. Recording that this Court vide order dated 22.04.2022 has held as follows:
" 10. This Court cannot insist the tenant to stay as a tenant, if the tenant is not willing to it. And inasmuch as the physical possession of the property is with the sub-tenants, who are inducted based on the term of the lease deed, this Court cannot allow the revision petitioner to continue his tenancy based on the affidavit. If the landlord has any claims against the tenant, that may have to be independently claimed in a separate proceeding, if the landlord is so desirous. Accordingly, the symbolic delivery of the property is recorded herein. "
2.d. Thereafter, it appears that memo dated 04.08.2022 has been filed https://www.mhc.tn.gov.in/judis 9 by the landlord in the RCOP proceedings based on the order passed by this Court dated 22.04.2022. The learned Rent Controller disposed the rent control proceedings taking note of Section 26 of the Act and held that any order of eviction as against the chief tenant would also bind upon the sub tenant. Further, held that it is not the case of the 7 th respondent (main RCOP) that the petitioner and the first respondent colluded and defrauded and even in such circumstances, the sub-tenant can only continue possession till the determination of the agreed period. The written authorisation that has been given by virtue of the lease deed long back expired on expiry of the lease and thus, the sub-tenants have no roots to hold and resist an order for delivery of possession. Therefore, ordered eviction against the first respondent and other respondents and directed to deliver the vacant possession of the petition premises within a period of one month from the date of that order.
2.e. Thereafter, the landlord has filed execution petition in E.P.No.244 of 2023. In the execution petition, an application has been filed by the 7 th respondent/one of the sub-tenant contending that he became a tenant on a monthly rent of Rs.40,000 from the chief tenant. According to him, the rent control proceedings is not maintainable since the landlord has permitted the chief tenant to sublet the basement of the petition premises. According to him, the landlord ought to have filed a civil suit before the competent Civil Court https://www.mhc.tn.gov.in/judis 10 to evict them. There is no privity of contract between him and the landlord. Therefore, the decree in RCOP No.485 of 2012 is not binding and the same is inexecutable. The said application is also also opposed by the landlord.
2.f.The learned Rent Controller allowed the application by the impugned order dated 26.09.2023 as the landlords refused to accept the sub- tenants as direct tenants under them and hence, the sub-tenants held the possession as tenants at sufferance, as their entry into the premises through the lease agreement was lawful and held that the decree in RCOP.No.485 of 2012 is inexecutable. Challenging the order, these revisions.
3. The learned counsel for the revision petitioner would mainly submit that the lease is for a period of 9 years. Originally the chief tenant was inducted as a tenant in the year 2001, lease was expired on 31.12.2009. Though the lease deed confers the right to sublet, the tenant cannot exceed the limit allowing the sub-tenant to continue the proceedings. It will be a case of acting without the authority of landlord. Subletting beyond the lease period will give rise to cause of action for the eviction of the tenant. Though the permission was granted to sublet premises, no consent has been obtained from the landlord to sublet the building to the respondents herein. The Executing https://www.mhc.tn.gov.in/judis 11 Court has misdirected itself and held that the decree passed is not only against the chief tenant and the sub-tenant inexecutable. When the chief tenant surrendered the tenancy and symbolic possession has been recorded by the High Court, the Executing Court holding that such symbolic possession is a void cannot be sustained in the eye of law. The Executing Court has omitted to consider the scheme of the rent control legislation. Whereas, it swayed away by the principles of transfer of property Act which is not valid in the eye of law. Hence, the order of the Executing Court has to be set aside.
4. According to him, Section 26 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 makes it clear that any order of eviction of the tenant passed under this section shall be binding on all sub tenants who are made parties in the application for eviction. Admittedly, all the sub-tenants were made as parties in the execution proceedings and except one of the sub- tenants namely the 7th respondent, other sub-tenants have not filed any counter. The only defence by the 7th respondent in the main RCOP is that since he is a tenant from the chief tenant, he is not liable to be evicted. Except that there is no pleadings whatsoever with regard to the alleged collusion or fraud between the landlord and chief tenant. Therefore, according to him, https://www.mhc.tn.gov.in/judis 12 once the order has been passed against the chief tenant and symbolic possession recorded, the rent controller also passed eviction order against all, it is binding on all the sub-tenants. Hence, seeks for allowing these revisions.
5.Whereas, the learned counsel for the respondent submitted that surrender of possession by the landlord, tenancy is determined. According to them, delivery of symbolic possession will operate as actual possession. Therefore, no order for delivery could have been passed by the rent controller since symbolic possession was already recorded as against the chief tenant. Therefore, only a civil suit will lie against the sub-tenant for ejectment. Therefore, the order of the Executing Court does not require any interference. In support of his contention, the learned counsel for the 7th respondent in the main RCOP relief upon the following judgments:
a. Ratan Lal Jain and others vs. Uma Shankar Vyas and others reported in (2002) 2 SCC 656 b. Jaimal Singh Dasaundha Singh vs. Rakhs Singh and others reported in AIR 1957 P&H 17 c.Jayagopal Mundra vs. Gulab Chand Agarwalla and others reported in AIR 1974 Ori 173 d.Ratan Lal Jain vs. Uma Shankar Vyas and others reported in AIR 2002 SC https://www.mhc.tn.gov.in/judis 13 804.
6. Heard both sides and perused the materials placed on record.
7. In light of the above submissions, now the point arises for consideration is whether once the symbolic possession recorded as against the the chief tenant, the same will bar further eviction as against the sub-tenants.
8. On perusal of the entire papers, the fact that the chief tenant was originally inducted as a tenant by way of registered lease agreement in the year 2001 is not disputed. The tenancy is for a period of 9 years which has been expired on 31.12.2009. Further, the chief tenant was continued to be in possession and paid rent. The lease deed has also permitted the chief tenant to let out the premises. Though he is authorised to let out the premises, specific consent of the landlords to sublet the premises has not been obtained. It is the case of the landlords that though the chief tenant was continued to pay the rents till 2014, he failed to pay the rents from 01.01.2014, enhanced rent which has been the main issue raised in the rent control proceedings as well as the application filed under Section 11(3) of the Act. Though the chief tenant has disputed the rent had also claimed adjustment of defraying expenses for construction, the Rent Controller has negatived that contention https://www.mhc.tn.gov.in/judis 14 and held that the chief tenant has failed to pay a sum of Rs.28,72,760/- and directed the chief tenant to pay a sum of Rs. 22,82,760/- as arrears failing which all further proceedings in the main RCOP would be stopped and the eviction of the respondent would be ordered. That order has reached finality before this Court in CRP No.964 of 2020.
9. Before this Court, chief tenant has submitted that he is not in possession of the property but the sub tenants who are in possession has neither paid rent from 2019 onwards nor vacated the premises. Therefore, he has filed an affidavit surrendering the tenancy. Accordingly, the symbolic possession against the chief tenant is recorded. It is to be noted that it is the specific stand of the chief tenant that the sub tenants have not paid rents from 2019 onwards. The very application filed by one of the sub tenant in EP indicate that he was a tenant on a monthly rents of Rs.40,000/-. Therefore, the fact remains that sub tenants also not paid huge rental arrears from 2019 onwards. As the chief tenant filed an affidavit before this Court in CRP.No.964 of 2020, symbolic possession is recorded as against him. Thereafter, the Rent Controller, by an order dated 15.12.2022 had taken note of the symbolic possession recorded as against the chief tenant and held that the collusion or fraud between the landlord and chief tenant has not been https://www.mhc.tn.gov.in/judis 15 established, the sub-tenant can continue the possession only till the determination of the agreed period. Therefore, the order of the eviction was passed against the first respondent and also the other respondents namely the sub-tenants to deliver the vacant possession the petition premises.
10. It is relevant to note that much emphasis has been placed on the judgment of the Hon'ble Supreme Court in the case of Ratan Lal Jain and others vs. Uma Shankar Vyas and others reported in (2002) 2 SCC 656, wherein, the sub tenants took up the application under Section 47 and Order 21 Rule 97 CPC objecting delivery of possession since the decree directed only symbolic possession as against the chief tenant. The the Hon'ble Apex Court applying the principles contained under Rules 35 and 36 of Order 21 CPC has held as follows;
"5. Having heard the learned counsel for the parties, we are of the opinion that the appeals are devoid of any merit and no fault can be found with the view taken by the High Court. Rules 35 and 36 of Order 21 CPC are relevant and clinch the issue arising for decision. Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or his agent, by removing any person bound by the decree who refuses to vacate the property, if it becomes necessary to do so. [Rule 35 sub-rule (1)] Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the court shall order delivery to be made by affixing a copy of https://www.mhc.tn.gov.in/judis 16 the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property. (Rule 36) The former is known as actual or physical delivery of possession while the latter is known as delivery of formal or symbolic possession. In the latter case, the person in actual occupation is not physically dispossessed from his possession of the decretal property. Still delivery of possession in the manner contemplated by Rule 36 remains delivery of formal or symbolic possession so far as the person in actual possession is concerned but as against the person bound by the decree, it amounts to actual delivery of possession. The rights of the person bound by the decree stand extinguished, he is removed from the property in the eye of law and his right and entitlement whatever it may be qua the person in actual possession and not bound by the decree stand vested in the decree-holder.
The above judgment makes it clear that in the event of delivery of symbolic possession recorded against the chief tenant in the eye of law he is removed from the property. In the said judgment, the decree was obtaind only against the chief tenant and the decree directed the deliver only of symbolic possession of person in possession other than judgment debtor. Only in such circumstances, the Hon'ble Apex Court held as above. The judgment cited in Jayagopal Mundra vs. Gulab Chand Agarwalla and others reported in AIR 1974 Ori 173 has held that symbolic possession will operate as actual even in the case where actual possession is not delivered.
11. The fact remains that it is not the case that the sub tenants were not https://www.mhc.tn.gov.in/judis 17 made as parties to the execution petition. After recording symbolic possession by this Court as against the chief tenant, the RCOP further proceeded not only against the chief tenant but also the sub tenants, the learned rent controller has clearly held that there was no collusion or fraud between the chief tenant and the landlord to surrender the tenancy and had directed the delivery of possession by all the sub tenants. That proceedings has reached finality and has not been challenged by way of appeal.
12. It is relevant to note that as far as the eviction of the tenants is concerned, Special Act namely the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 before it repealed by the the Tamil Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act 2017 was governing the field. The said Act is a self contained code. It is not disputed by the respondents that they are the sub tenants under the chief tenant. The self contained code, Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 gives protection to the landlord and tenants and also method of eviction of the tenants and sub tenants.
13. Section 26 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 reads as follows:
https://www.mhc.tn.gov.in/judis 18 " 26. Order under the Act to be binding on sub-tenants. Any order for the eviction of a tenant passed under this Act shall be binding on all sub-tenants who were made parties in the application for eviction, but any person who become a sub-
tenant after the date of the application for eviction shall be bound by the order of eviction and be evicted as if he were a party to the proceedings provided that such order was not obtained by fraud or collusion."
14. The above provision makes it very clear that this section is only an enabling provision and does not affect the well-established principle that the sub tenant has no right independent of the right under the Act and in the absence of fraud or collusion between the landlord and the tenant. It is not permissible for the tenant to stultify the proceeding for eviction by the landlord by putting forth any independent contention of his own.
15. It is not the case of the sub-tenants that they are not parties in the proceedings. Admittedly, they were parties in the rent control proceedings. It is not their case that symbolic possession recorded as against the chief tenant is vitiated by fraud or collusion, because they were not parties to the proceedings. Such a plea cannot be made by the sub tenants who were made parties to the proceedings because they are bound by the stand taken by the chief tenant. This has been held by a Division Bench of this Court in the case of Natarjan vs. Nachimuthu Chettiar reported in 1984 (2) MLJ 50. https://www.mhc.tn.gov.in/judis 19
16. Similarly statutory right of the sub-tenant is limited to the duration of the right of his own lessor namely the chief tenant. It is further to be noted that when this Court has recorded symbolic possession, the Executing Court holding that the order of eviction against the first respondent is void in nature cannot be sustained in the eye of law. When the scheme of Act provides for method of eviction of sub-tenant and the statutory right to the sub-tenant is limited to the duration of the right of his own lessor, as long as there is no fraud or collusion established, sub-tenants cannot contend that they are the tenants by sufferance and they should be evicted only by Civil Court. It is to be noted that in the main counter, no such plea whatsoever raised, except 7th respondent others have not filed counter. Therefore, new plea cannot be introduced in the execution proceedings. When the sub-tenant who were already made as parties in the eviction proceedings, they can make defence permissible under this Act namely Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 alone. When they do not dispute their status, the only defence available to them is to show that tenancy was not unauthorised one but created by written consent and knowledge of landlord and no other defence can be raised by the sub tenant.
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17. Such view of the matter, the impugned order applying principles of Transfer of Property Act and ignoring the provisions of the Special Act which is governing the landlord and tenant relationship cannot be sustained in the eye of law. A Division Bench of this Court in the case of K.Abdul Samad and others vs. St.Peters Church, Royapuram reported in 2024 SCC OnLine Mad 5493 has held as follows:
"25.The case of the appellant that the suit is bad for non- inclusion of sub-tenants as defendants, has no legal basis on the admitted facts. It is the admitted position in law that the appellants cannot create a right more than what they had under the original lease agreement. After the expiry of lease and termination of lease agreement, the defendant has no right to extend the period of tenancy in favour of others. It is well settled that a judgment against chief tenant is binding on the sub-tenant, even though he is not made as party to the suit. It is to be seen that there is no privity of contract between the plaintiff and the sub-tenants or sub-lessees. It is to be seen that the defendant appears to have put up a huge storage yard and given licence to many people to use the premises as warehouse for their goods on payment of charges. When the defendant has never raised the ground in the written statement, after 23 years, the appellant cannot be permitted to raise a new plea without disclosing the facts. The appellants cannot created a lease or grant permission to 3rd parties beyond the period of lease. Since several persons are permitted for temporary period, the plaintiff may not even know who are all the licensees or sub-tenants. Any license or subtenancy created after expiry of lease, is not binding on plaintiff.
28. The learned Senior Counsel appearing for the appellants also relied upon the judgment of the Hon'ble Supreme Court in the case of Shyam Babu v. District Judge, Moradabad https://www.mhc.tn.gov.in/judis 21 and others reported in 1984 (1) SCC 411. In the said case, the Hon'ble Supreme Court considered the eviction proceedings under the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. It is well settled that the statutory protection available to tenants is available to sub-tenants and a person who is in possession of a building irrespective of the fact whether he is a tenant or sub-tenant is entitled to protection under Rent Control legislation. Therefore, the eviction proceedings cannot be initiated without impleading the sub- tenant. The position is not different even under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Question before the Hon'ble Supreme Court itself is whether the sub-tenant is entitled to the protection under 4th proviso to Section 21 of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. After taking note of Section 3(j) of the said Act, which defines the term ?tenant? as a person in relation to a building, denotes a person by whom a rent is payable, the Hon- ble Supreme Court held that a sub-tenant who pays rent to the tenant-in-chief would also be the tenant under the Act. However, the landlord who has not entered into any agreement, can get an order of eviction as against the chief tenant and an order of eviction is binding on the sub-tenant who has no independent right than the right of a tenant. In this case, the tenant is the contesting defendant who has questioned only the authority of the landlord to terminate the tenancy on a trivial ground of enhancement of rent. "
18. In view of the above when the specific provisions made under the Act namely Section 26 which is an enabling provision and the Rent Controller also recorded the fact that the collusion or fraud has not been established, the sub tenants are bound by the Order. Further, this Court is of the view that merely the order has been passed directing delivery once again by the chief tenant after recording symbolic possession will not be vitiated. Though the https://www.mhc.tn.gov.in/judis 22 symbolic possession as against the chief tenant amounts to actual possession in the eye of law, the rent control proceedings has not come to an end there itself. The rent controller has decided the issue and held that there was no collusion or fraud established against the chief tenant and directed the delivery of the property by the sub tenants.
19. Such view of the matter, ignoring the principles of Special Act and applying the principles of General law and passing the impugned orders is nothing but clear case of perversity. Hence, the impugned orders stand set aside. The Executing Court shall proceed expeditiously and dispose of the Execution Petition in E.P.No.485 of 2012 within a period of four months from the date of receipt of a copy of this Order.
20. It is made clear that while disposing the Execution Petition, the Executing Court shall take into consideration of the directions given by the Hon'ble Apex Court in Civil Appeal Nos. 1659 to 1660 of 2021 dated 22.04.2021.
N.SATHISH KUMAR, J.
https://www.mhc.tn.gov.in/judis 23
21. Accordingly, these revision petitions stand allowed. No costs.
22.11.2024
dhk
Internet : Yes/No
Index : Yes/No
Neutral Citation : Yes/No
To
The XI Judge
Small Causes Court, Chennai.
C.R.P.Nos.55, 63, 64, 65, 68 and 71 of 2024
https://www.mhc.tn.gov.in/judis