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Lilly Stella Rodrigues Vs. Girija Bai and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Petn. No. 437 of 1966
Judge
Reported inAIR1969Kant100; AIR1969Mys100; (1968)1MysLJ216
ActsMysore Rent Control Act, 1961 - Sections 21; Madras Buildings (Lease and Rent Control) Act, 1949 - Sections 7(2)
AppellantLilly Stella Rodrigues
RespondentGirija Bai and ors.
Excerpt:
.....of transfer of property act - petition seeking eviction on ground of arrears and creation of sublease without landlord's concurrence - section 7 does not prohibit sublease - as such in absence of express provision in madras act prohibiting creation of sublease lessee had power to make sublease under section 108 - as sublease was not made contrary to provision of law then in force petition liable to be dismissed. held see paras 14 and 21. - karnataka municipalities (president & vice-president) election rules, 1995. rule 13(2): [ashok b. hinchigeri, j] commencement of reservation process statute speaks of reservation for sc category first, whereas rules speaks of reservation for st category conflict between the statute and the rules effect - held, when the statute first speaks of..........first part of the clause refers to an unlawful sub-lease whereas the second part refers to a sub-lease contrary to law.20. it is obvious that the expression 'unlawfully' was used in the first part of the clause since section 23 of the mysore act which governed sub-leases used the expression 'shall not be lawful'. since a sub-lease in the absence of a contract to the contrary after part v of the mysore act came into force is not lawful, the legislature employed the expression 'unlawfully' when it referred to sub-leases created after the commencement of that part. the employment of that expression for that reason is quite intelligible. but, since more than one law imposing restrictions on the landlord's right to seek eviction was operating in the five different areas which became the new.....
Judgment:
ORDER

1. The petitioner is a landlord who sought eviction under Clauses (a) and (f) of Section 21 of the Mysore Rent Control Act, 1961. The original lessee was certain Appaji Rao and when the application for eviction was made, he was dead. Respondents 5 to 11 in this revision petition are all his legal representatives. Respondents 1 to 4 were impleaded as parties to the proceedings in the Court below on the ground that there was an impermissible sub-lease to those four persons by Appaji Rao in the year 1962. The eviction was sought firstly, on the ground that the lessee was in arrears and secondly, on the ground that there was a sub-lease without the landlord's concurrence. The application was resisted by the sub-lessees who asserted that they were the lessees and that Appaji Rao was only a benamidar for them. Neither of the two Courts below accepted the contention that the lease was a benami transaction. But while the Munsiff gave the landlord the order sought by him on both the grounds, that order was reversed by the District Judge who came to the conclusion that there were no arrears and that the sub-lease did not entail eviction.

2. Now, that there was a sub-lease in favour of respondents 1 to 4 is no longer disputed. But Mr. Holla appearing for the landlord maintained that that sub-lease did entail eviction under Clause (f) of Section 21 of the Mysore Rent Control Act, 1961 since that sub-lease which was made before that Act came into force, was created contrary to the provisions of the Madras Buildings (Lease and Rent Control) Act, 1949. I shall refer to this Act in the course of this order as the Madras Act and to the Mysore Rent Control Act as the Mysore Act.

3. Before proceeding to discuss the argument based on the sub-lease, I should notice the submission made by Mr. Holla in criticism of the finding of the District Judge that there were no arrears. Mr. Holla did not dispute that the arrears were deposited within the time allowed. But, according to him, that deposit which was made by the sub-lessees and not by the legal representatives of the principal lessee was not deposit in the eye of law and so, did not entitle the sub-lessees to resist the application for eviction. I do not accede to this contention.

4. If the sub-lease in favour of respondents 1 to 4 is such as would entail their eviction, the deposit made by them becomes inconsequential. If not, it is a good deposit and the application founded on Clause (a) of Section 21 of the Mysore Act, becomes impossible. So, the real question is whether the sub-lease entails eviction.

5. Clause (f) of Section 21 of the Mysore Act which entitles a landlord to seek an order of eviction when there is a sub-lease, reads:

'21, Protection of tenants against eviction--(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or other authority in favour of the landlord against the tenant:

Provided that the Court may on an application made to it, make an order for the recovery of possession of a premises on one or more of the following grounds only, namely:--

xx xx xx xx (f) that the tenant has unlawfully sub-let the whole or part of the premises or assigned or transferred in any other manner his interest therein and where the sub-letting, assignment or transfer has been made before the coming into operation of this Part (except in respect of sub-letting, assignment or transfer to which the provisions of Section 61 are applicable), such sub-letting, assignment or transfer has been made contrary to any provision of law then in force; or...'

6. The finding of the Munsiff that the sub-lease was made in the year 1962 stands superseded by the finding of fact recorded by the District Judge that it was made in the year 1954. Since the sub-lease was created before the commencement of the operation of Part V of the Mysore Act to which Clause (f) refers, the second part of that clause and not the first applies. Whereas under the first part of that clause an unlawful sub-lease entitles the landlord to seek an order of eviction if that sub-lease was made after Part V commenced to operate, in the case of an earlier sub-lease the order for eviction can be sought only if it falls within the second part of that clause. So what should be established by the landlord in the present case is that the sub-lease was made 'contrary to any provision of law then in force.'

7. Section 23 of the Mysore Act declares that a sub-lease, after Part V of the Mysore Act came into force, shall not be lawful unless there is a contract to the contrary. So, it is clear that that sub-lease in the absence of a contract to the contrary is unlawful and that unlawful sub-lease entitles a landlord to seek an order for eviction under the first part of Clause (f) of Section 21 of the Mysore Act if that sub-lease was made after Part V of that Act commenced to operate. But in the present case where the sub-lease was made before the commencement of that part, I am not concerned with the first part of Clause (f) and so the question is not whether the sub-lease in favour of respondents 1 to 4 was unlawful, but whether the sub-lease in their favour was contrary to any provision of laws in force when it was made.

8. It was argued before the District Judge that the sub-lease in favour of respondents was contrary to the provisions of Section 7 of the Madras Act, which reads:

'7. Eviction of tenants--(1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section

xx xx xx xx (2) A landlord who seeks to evict his tenant shall apply to the controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied....

(a) transferred his right under the lease or sub-let the entire building or any part thereof if the lease does not confer on him any right to do so--

the Controller shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not satisfied, he shall make an order rejecting the application:'

9. The District Judge who did not properly understand the provisions of Clause (f) of S. 21 of the Mysore Act, made the mistake of thinking that what the landlord had to establish was that the sub-lease was unlawful. But what he had really to investigate was whether the sub-lease was contrary to any provision of law which was operating at the time of the sub-lease. It is plain that the District Judge overlooked the distinction between a sub-lease created before Part V of the Mysore Act commenced to operate and a sub-lease which was created after the commencement of that part.

10. I should exclude from consideration the finding recorded by the District Judge which was influenced by the miscomprehension of the relevant statutory provision. I should therefore, address myself to the question whether the sub-lease was contrary to the provisions of any law then in force.

11. Mr. Holla appearing for the landlord contended that since it was possible for a landlord to seek an order for eviction under Section 7(2)(a) of the Madras Act, in a case where the lessee made a sub-lease without his having a right to make it under the terms of the lease,--and there was none in the present case--the sub-lease in favour of respondents 1 to 4 was contrary to the provisions of that Act.

12. Mr. Ganapathy Bhat maintained that under the provisions of Section 108(j) of the Transfer of Property Act, the lessee had the right to make a sub-lease, unless there was a contract to the contrary and that since the Madras Act does not prohibit any such sub-lease, the sub-lease by Appaji Rao to respondents 1 to 4 was not contrary to law but was permissible.

13. Now, Section 7(2)(a) of the Madras Act, does not prohibit a sub-lease. What it provides is that if there is a sub-lease and that sub-lease is not authorised by the terms of the lease, the landlord may make an application for the eviction of the tenant and that on proof that there was such sub-lease there shall be an order of eviction. It is one thing to say that a sub-lease is contrary to law and quite another to say that a sub-lease which is not authorised by the lease deed entails eviction. The expression 'contrary to any provision of law' occurring in clause (f) in Section 21 of the Mysore Act should be understood as having reference to an act which is made in opposition to law. Between the act does and the law which regulates that act, there must be an element of contrariety. That element of contrariety exists when the law prohibits the act.

14. 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 and between the sub-lessee and the lessee, there is the relationship of landlord and tenant.

15. I should make a distinction between a sub-lease which creates a right in the landlord to seek eviction and a sub-lease 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.

16. 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 forbidden by any general or special law or a sub-lease which is inconsistent with any law then in force.

17. That view which I take, receives support from the decision in Mercantile Steamship Co. v. Hall, 1909-2 KB 423 in which Pickford J. said this:

'.......... I reserved my judgment because I wished to see if I could get from any of the authorities any guidance as to what was the exact meaning that had been attached by the Courts to the wide words 'contrary to law'. I have not got any great assistance from the cases, because I do not think any of them turned on facts and considerations such as those which arise in this case. Of course a stipulation may be contrary to law in a great many ways. It may be contrary to the general law, but it is not suggested that the stipulation is so here. Or it may be contrary to certain express provisions in that Act prohibiting stipulations of this description; therefore I have to consider whether, if stipulations are not expressly prohibited by the Act, they are contrary to law within the meaning of Section 114 if they are inconsistent with the provisions of the Act. I am of opinion that they are, and the question therefore narrows itself.........'

18. The only statutory provision on which dependence was placed on behalf of the landlord in support of the postulate that the sub-lease was contrary to law was Section 7 of the Madras Act. But that law does not expressly prohibit a sub-lease and it cannot be said that the creation of the sub-lease was inconsistent with the provisions of that Act.

19. But Mr. Holla asked attention to the expression 'unlawfully', occurring in the first part of clause (f) of Section 21 of the Mysore Act and asked me to contrast that expression with the expression, 'contrary to any provision of law' occurring in that Section. His argument was that the two expressions cannot have the same meaning since the first part of the clause refers to an unlawful sub-lease whereas the second part refers to a sub-lease contrary to law.

20. It is obvious that the expression 'unlawfully' was used in the first part of the clause since Section 23 of the Mysore Act which governed sub-leases used the expression 'shall not be lawful'. Since a sub-lease in the absence of a contract to the contrary after Part V of the Mysore Act came into force is not lawful, the Legislature employed the expression 'unlawfully' when it referred to sub-leases created after the commencement of that Part. The employment of that expression for that reason is quite intelligible. But, since more than one law imposing restrictions on the landlord's right to seek eviction was operating in the five different areas which became the new States of Mysore under the States Reorganisation Act, and, the provisions were not uniform and not all those laws expressly prohibited a sub-lease as section 23 of the Mysore Act does, no one should feel surprised with the selection of the expression 'contrary to any provision of law' by the Legislature when it referred to a sub-lease created before the commencement of Part V of the Mysore Act.

21. However that may be, I am concerned in this case with the meaning of the words, 'contrary to any provision of law' and I have no doubt in my mind that those words have reference to a sub-lease expressly prohibited by a law then in force. The sub-lease in the present case was not.

22. The decision of the High Court of Madras in Aiyannah Chetty v. Muddukrishnayya & Co., (1956-2 Mad LJ 54) on which Mr. Holla depended in support of the argument to the contrary, cannot be of much assistance to him since that was a case in which a tenant whose eviction was sought under Section 7(2)(ii)(a) of the Madras Act appealed to the provisions of Section 108(j) of the Transfer of Property Act and the plea was negatived. The observation in that case that the right created in favour of the landlord by the Madras Act has to be understood in the context in which it was made and when so understood, that observation only means that the right of the tenant created by the provisions of the Transfer of Property Act must yield to the right of the landlord created by the Madras Act.

23. I dismiss this revision petition; but in the circumstances of the case, I make no order as to costs.

24. Mr. Holla says that the petitioner should be permitted to withdraw the amount deposited by the sub-lessee. Mr. Ganapathy Bhat does not object and so it will be paid to the landlord.

25. Petition dismissed.


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