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Manepalli Lakshminarayana Vs. Mandavalli Suryakantham - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 829 of 1983
Judge
Reported inAIR1985AP38
ActsAndhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 - Sections 10 and 10(2)
AppellantManepalli Lakshminarayana
RespondentMandavalli Suryakantham
Appellant AdvocateT. Veerabhadraiah, Adv.
Respondent AdvocateN.V. Ranganadham and ;P. Venugopal, Advs.
Excerpt:
.....authorised to sub-let property as per oral consent of deceased - according to section 10 (2) (ii) written consent was required to sub-let property - no such consent was given to appellant - held, appellant liable to be evicted from property. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is..........s.10 (2) on the ground that (1) the petitioner sublet the building to two tailors without the written consent of the respondent, (2) the petition schedule premises is required for running business by the respondent's adopted son and (3) the said premises is required for carrying on tepairs. oral and documentary evidence was produced both on behalf of the respondent and the petitioner herein. on consideration of the evidence on record, the rent controller held that the petitioner herein is liable to be evicted from the said premises on the grounds of 1) subletting, 2) requirement to carry on repairs and 3) bona fide requirement for the purpose of carrying on business by the respondent's adopted son. on appeal, the learned subordinate judge (rent control appellate authority0 confirmed.....
Judgment:
ORDER

1. This revision petition is filed against the judgment of the Rent Control Appellate Authority and Subordinate judge, Tanmuku dt. 23-2-1983 in R.C.A. No. 4 of 1982 confirming an order of the Rent Controller, Tanuku dt. 4-11-1982 passed in R.C.C. 1 of 1980 allowing an application filed by the respondent herein under S.10 (2) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act 1960 (hereinafter referred to as the Act).

2. The petitioner herein took on lease the petition schedule premises for running a cloth shop, in the year 1949 under a lease deed Ex. A-6. The petition was filed under S.10 (2) on the ground that (1) the petitioner sublet the building to two tailors without the written consent of the respondent, (2) the petition schedule premises is required for running business by the respondent's adopted son and (3) the said premises is required for carrying on tepairs. Oral and documentary evidence was produced both on behalf of the respondent and the petitioner herein. On consideration of the evidence on record, the Rent Controller held that the petitioner herein is liable to be evicted from the said premises on the grounds of 1) subletting, 2) requirement to carry on repairs and 3) bona fide requirement for the purpose of carrying on business by the respondent's adopted son. On appeal, the learned Subordinate judge (Rent Control Appellate Authority0 confirmed the order of the learned Principal District Munsif (Rent Controller).

3. It is stated by the learned counsel for the petitioner that the petition schedule premises was leased out by the husband of the respondent herein in favour of the petitioner under Ex.A-6 lease deed dt. 15-10-1949 and ever since then he has been running a retail cloth shop in the said premises. The landlord died sometime back and the respondent herein is his widow. It is the case of the petitioner herein that a portion of the petition schedule premises was sublet to two tailors with the consent of the landlord, long back and the respondent having full knowledge of subletting, has been receiving rents regularly from the petitioner herein, without raising any objection against subletting.

4. It is contended that the subletting was with the consent of the landlord and after his death of the respondent herein and as such the petitioner herein who is the tenant is not liable to be evicted on the ground of subletting. It is submitted by the learned counsel that no particulars as to the nature of the business proposed to be commenced by the adopted son of the respondent herein are mentioned in the petition for eviction and no evidence is led as to the nature of business proposed to be started in the petition schedule shop. In the absence of particulars of business, it is argued that the petition for eviction on the ground of bona fide requirement to start business is not maintainable. It is also argued by the learned counsel for the petitioner that the petition schedule shop does not require any repairs as mentioned in the petition filed by he respondent herein for eviction and that it is merely a ruse to evict the petitioner herein from the said shop so that it may be leased out later on a higher rent.

5. Section 10(2) (ii) (a) of the Act reads as follows:

'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 opp9ortunity of showing cause against the application, is satisfied.....

ii) that the tenant has in the Andhra area, after the 23rd October, 1945, and in the Telangana area after the commencement of the Hyderabad house Rent Control Order of 1353 Fasli, without the written consent of the landlord...... a) transferred his right under the lease or sublet the entire building or any portion thereof it 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 so satisfied, he shall make an order rejecting the application............'

6. As per the terms of the lease deed Ex. A-6 the petitioner herein should not sublet the premises without the written consent of the landlord. S.10 (2) (ii) (a) specifically provides that if the tenant in the Andhra area after 23-10-1945 has transferred his right under the lease or sublet the entire building or a portion thereof without the written consent of the landlord and the lease does not confer on him any such right, the tenant is liable to be evicted.

7. In this case, the first question that arises for consideration is whether there is written consent of the landlord for subletting when the lease deed does not confer any such right on the tenant to sublet. The submission of the learned counsel for the petitioner is that the consent need not be in writing and it can be inferred from the conduct of the parties, spread over a fairly long period of time. In this context, it is contended that as the right conferred on the landlord under S.10 (2) to seek eviction of a tenant from the premises can be waived by the landlord, by such waiver, the requisite consent for subletting can be inferred. In this connection, it is submitted that the original landlord who is the husband of the respondent herein consented for subletting and the respondent herein has full knowledge of subletting and has been regularly receiving rent without raising any objection. According to the petitioner herein, he did not part with the possession of the suit schedule shop and merely allowed two tailors to have their sewing machines as is the practice with every person running a retail cloth shop. It is further submitted that the rent collected from the two tailors was nominal, relying upon a judgment of the Full Bench in P.N. Rao, v. K. Radhakrishnamacharyulu : AIR1978AP319 wherein it is laid down that:

'The landlord by his conduct may still waive his right to the benefits of the Act by accepting the rent subsequently and hence he must not be permitted to maintain the eviction petition.'

8. It is contended that by the conduct of the original landlord and after his death the conduct of his wife, the respondent herein, in accepting the rent regularly and without raising any objection against subletting, the original landlord and the respondent herein shall be held to have waived their right to the benefit under the Act to seek eviction of the tenant on the ground of subletting. It is submitted by the learned counsel that as matter of fact the husband of the respondent herein consented for subletting to the two tailors and it is not open to the respondent herein to file a petition for eviction on the ground of subletting without consent. My attention is drawn to a judgment of a learned single Judge of this Court in Mrs. Chacko v. Yeditha Seshamma, 1971 (1) AP LJ 82 wherein his Lordships has taken the view that: -

'In the case of subletting, the breach is not continuous and if there was acceptance of rent, without demur after the landlord has knowledge of the subletting, a different result might follow. Once a subletting is assented to, it may not be open to the landlord to have recourse to that ground for obtaining an eviction order.'

On the basis of the above referred two judgments it is urged by the learned counsel for the petitioner that it is not open to the respondent at this stage to seek eviction of the tenant on the ground of subletting, having regard to the facts and circumstances of this case.

9. On the other hand, the learned counsel for the respondent submits that under S.10 (2) (ii) the written consent of the landlord is a condition precedent for subletting when the lease -deed does not confer any such right on the tenant. It is stated that the date 23-10-1945 referred to in S.10 (2) (ii) is the date of commencement of Madras House Rent Control Order 1945 issued under Defence of India Rules. They ceased to be in force from 1-10-1946 when Madras (Lease and Rent) Control Act 1946 came into force. When the Act itself has specifically provided that the landlord can seek eviction of a tenant on the ground of subletting, when the tenant sublets the premises or a portion of it without the written consent of the landlord, when the lease-deed does not confer any such right on him, the tenant cannot be permitted to raise the plea of waiver or oral consent. In this context it is submitted that the provisions of S.10 (2) (ii) requiring written consent of the landlord for subletting are based on public policy and such a public policy should not be permitted to be defeated by raising a plea of waiver or oral consent in the place of the landlord. In this regard, the learned counsel placed reliance upon a judgment of the Supreme Court in Waman Shriniwas v. R.B. & Co., : AIR1959SC689 . Relying upon the judgments in Aiyannah Cheety v. Muddu Krishnayya & Co., (1956) 2 Mad LJ 54 and T.S.O. Abdul Khader v. G.H. Rao (1964) 2 Mad LJ 288 it is argued that when the act required the written consent of the landlord any kind of acquiescence by the landlord or estoppel by his cond uct cannot be a substitute for the plain requirement under the statute of a written consent.' In Associated Hotels of India v. Ranjit Singh, : [1968]2SCR548 the Supreme Court considered the scope of S.13 of the Delhi and Ajmer Rent Control Act which provided that a tenant is liable to be evicted from the premises if he has sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent of the landlord in writing. In this case, both the Courts below concurrently found that the sublettings after the commencement of the Act were without obtaining the consent of the landlord in writing, and the sublettings before the commencement of the Act were made without obtaining the consent of the landlord either orally or in writing. Having regard to the said concurrent finding of fact, their Lordships of the Supreme Court have declined to interfere with the judgment of the Court below. Relying upon the above referred judgments, the learned counsel for the respondent submits that in this case as there is admittedly no written consent for subletting and the provisions under S.10 (2) (ii) are based on public policy, no waiver, if any, can be inferred from the conduct of the parties and such an inference amounts to estoppel against a statute.

10. Both the Tribunals below have thoroughly and elaborately considered the oral and documentary evidence and came to the conclusion that the tenant violated the terms and conditions of the lease-deed Ex. A-6 and sublet a portion of the premises to R.Ws 2 and 3 without the written consent of the respondent or her husband and as such the tenant is liable to be evicted. Under S.3 of the Act, every landlord is under a legal obligation to give notice of the vacancy in writing to the Authorised officer within 10 days after the building becomes vacant. The Act is intended to regulate the lease of buildings, the control of rent thereof and the prevention of unreasonable eviction of tenants therefrom. When the legislature has specifically provided that a tenant shall not sublet without the written consent of the landlord unless the lease-deed confers such a right on him, which provision appears to be based on public policy, the very object and purpose sought to be achieved by the said provision will be defeated if subletting is permitted on the basis of oral consent or on the ground of waiver. Wilful default in payment of rent as a ground for eviction of tenant stands on a different footing from the ground of subletting without the written consent of the landlord. In case of wilful default in payment of rent, a contract to the contrary can be inferred from the conduct of the parties and a plea of waiver can be permitted to be raised. But when S.10 (2) (ii) specifically requires the written consent of the landlord for subletting when the lease-deed does not confer any such right of subletting on the tenant, no oral consent or an inference of consent from the conduct of the parties can be permitted to be substituted in place of written consent as it amounts to alteration of the provisions of the Act itself. Apart from that, when a landlord is entitled to seek eviction of a tenant on the ground of subletting without written consent of the landlord, denial of such a right on the basis of oral consent or waiver of the right amounts to estoppel against a statute which is not permissible under law. For the reasons stated above, I do not find force in the contention of the learned counsel for the petitioner that by the reason of the oral consent and the conduct of the original landlord and, after his death, the conduct of his widow the respondent herein, in accepting the rent regularly having full knowledge of subletting which amounts to waiver of the right to seek eviction of the tenant, the petition filed under S.10 (2) (ii) is liable to be dismissed.

11. The next contention advanced by the learned counsel for the petitioner is that no particulars of the business proposed to be commenced by the adopted son of the respondent herein are mentioned in the petition and in the absence of such particulars the eviction petition filed on the ground of bona filed requirement to start business is liable to be dismissed in view of the judgment of this Court in P. Latchnna v. G. Appa Rao, : AIR1983AP244 . The learned Judge held that:

'The particularisation of the business without being vague or equivacal must be stated in the petition itself and it is this ingredient that in essence contributes towards the formation of satisfactory opinion by the Controller. Since this ingredient is woefully lacking in this petition, the petition deserves to be dismissed.'

On the other hand, the learned Counsel for the respondent submits that it is not for the tenant to dictate for what purpose he should use the building and how he should make use of it and it is for the landlord to choose. But having regard to the view expressed by the Supreme Court in M.M. Quasim v. Manohar Lal : [1981]3SCR367 that.

'To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison detre of the Rent Act.'

It is contended by the learned counsel for the petitioner that when the respondent let out a portion of the building which was useful to carry on business, before the filing of the eviction petition it is not open to her to file a petition for eviction on the ground of personal requirement when she failed to establish that the premises which was vacant was not suitable for the purpose for which she wanted the said premises. On the basis of the judgment of the Supreme Court as well as that of this Court referred to above, and having regard to the evidence on record, it has to be held that both the Tribunals below erred in holding that the tenant is liable to be evicted on the ground of bona fide requirement and that the said premises is required for the purpose of commencing the proposed business by the adopted son of the respondent herein. It is an admitted fact that no particulars of the business are given and no evidence is let in as to the nature of the business that is proposed to be commenced by the adopted son of the respondent. No evidence is produced before the Court as to how the portion that fell vacant before or at the time of filing of this eviction petition was not suitable to carry on the proposed business and how the petition schedule premises is more suitable. In the circumstances, having regard to what is stated above, it has to be held that the Tribunals below erred in holding that the petitioner is liable to be evicted on the ground of requirement of the premises to commence the business, as the nature and particulars of which are not mentioned in the eviction petition.

12. As regards the contention relation to eviction of the tenant for the purpose of carrying out repairs, I consider that it is not necessary to deal with the said contention in view of what I have held in respect of subletting. The petitioner herein is liable to be evicted from the petition schedule shop on the ground of subletting. As both the Tribunals below have concurrently found that the tenant sublet a portion of the shop without the written consent of the landlord, I do not see any error of jurisdiction or law in the judgment of the Appellate Authority to the extent stated above. For the above-mentioned reasons, the revision petition fails and is accordingly dismissed. In the circumstances there shall be no order as to costs.

13. The petitioner herein has been continuing in possession of the suit schedule shop since the year 1949 carrying on retail cloth business. Having regard to this fact, I consider that it will be just and proper if three months' time from today is granted in favour of the petitioner to enable him to vacate the petition schedule premises and deliver possession of the same to the respondent. The petitioner is directed to deposit the arrears of rent, if any, due up-to-date, within four weeks from today and he shall continue to pay rent for the said three months on or before 15th of each month. On deposit, the respondent is permitted to withdraw the amount without furnishing any security.

14. Revision dismissed.


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