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Parameswaran Nair Narayanan Nair Vs. Krishnapillai Chellappan Pillai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 2192 of 1983
Judge
Reported inAIR1984Ker48
ActsKerala Buildings (Lease and Rent Control) Act, 1965 - Sections 2(3), 11 and 11(16)
AppellantParameswaran Nair Narayanan Nair
RespondentKrishnapillai Chellappan Pillai
Appellant Advocate S.A. Nagendran and; N.N.D. Pillai, Advs.
Respondent Advocate K.C. John, Adv.
DispositionRevision allowed
Cases ReferredIn M. C. Chacko v. State Bank of Travancore
Excerpt:
.....2 and 11 of kerala buildings (lease and rent control) act, 1965 - whether person who collects rent as agent of landlord can file petition for eviction without previous written consent of landlord - under section 11 petition for eviction has to be filed by landlord - person who was given right to reside in building will not get right to file eviction petition without consent even if he was agent for collecting rent. - - the appellate authority held that only a person employed by the landlord merely for the purpose of collecting rent need have the previous written consent insisted by section 11 (16) of the act and a person like the respondent who has a right to receive rent is a landlord within the meaning of section 2 (3) and hence he can maintain a petition for eviction. this..........judge. the learned district judge held that 'the restraint placed by section 11 (16) is on the agent-landlord contemplated under section 2 (3)' and hence the respondent should have permission from the owners to maintain the petition for eviction. the learned district judge then extracted the authorisation given by the vendor in ext. a-8 sale deed and held that the necessary permission required under section 11 (16) of the act is there in exhibit a-8. tt was also held that the necessary permission is there in ext. a-7 letter. the petitioner's revision under section 20 of the act was hence dismissed by the learned district judge. it was under the above circumstances that the petitioner has approached this court with this civil revision.3. the points that arise for consideration are:.....
Judgment:
ORDER

K.K. Narendran, J.

1. The respondent-tenant in a petition for eviction under Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 2 of 1965, for short the Act, is the petitioner in the civil revision. The petition for eviction was filed by the respondent herein. The building belongs to his son and the nephew. According to the respondent, as per the sale deed (Ext. A8) the has the right to collect the rent and of residence in the building. The petitioner-tenant in his objections filed to the petition for eviction raised a contention that the respondent cannot file the petition for eviction without the previous written consent of the landlord and the recitals in the sale deed will not amount to such a written consent and will not empower him to file the petition for eviction.

2. The Rent Control Court found that the authorisation in Ext. A-8 can be treated as a consent insisted by Section 11 (16) of Act 2 of 1965 and hence, even in the absence of Ext. A-7, the respondent can maintain the petition for eviction. Accordingly, the petition for eviction was allowed by the Rent Control Court. The petitioner filed an appeal before the Appellate Authority. The Appellate Authority held that only a person employed by the landlord merely for the purpose of collecting rent need have the previous written consent insisted by Section 11 (16) of the Act and a person like the respondent who has a right to receive rent is a landlord within the meaning of Section 2 (3) and hence he can maintain a petition for eviction. It was further held that the authorisation in Exhibit A-8 is sufficient under Section 11 (16) for the respondent to maintain the petition for eviction. Accordingly, the Appellate Authority dismissed the appeal. The above judgment was challenged by the petitioner in a revision under Section 20 before the District Judge. The learned District Judge held that 'the restraint placed by Section 11 (16) is on the agent-landlord contemplated under Section 2 (3)' and hence the respondent should have permission from the owners to maintain the petition for eviction. The learned District Judge then extracted the authorisation given by the vendor in Ext. A-8 sale deed and held that the necessary permission required under Section 11 (16) of the Act is there in Exhibit A-8. Tt was also held that the necessary permission is there in Ext. A-7 letter. The petitioner's revision under Section 20 of the Act was hence dismissed by the learned District Judge. It was under the above circumstances that the petitioner has approached this Court with this civil revision.

3. The points that arise for consideration are: (1) Whether a person who collects rent as agent of the landlord can file a petition for eviction without the previous written consent of the landlord of the building in view of Section 11 (16) of the Kerala Buildings (Lease and Rent Control) Act, 2 of 1965 Will the position be different if he was given some rights including the right to occupy the building for his lifetime by the vendor? and (2) can the right to file the petition for eviction be conferred by the vendor of the building and whether the tenant can contend that the sale deed cannot confer any sudh right on a person other than the vendee

4. In Pahalajmal Khatumal v. T. V. A Brothers ((1961) 1 Mad LJ 150) it has been held:

'The expression 'merely as an agent of the landlord' has necessarily to be read along with the earlier clause 'who is receiving or is entitled to receive the rent'. 'Merely' therefore, qualifies the extent of the power of the agent, and where such power is limited only to receiving the rent or to be entitled to receive the rent, such an agent cannot apply for the eviction of the tenant unless he is armed with the further power in the shape of previous written consent of the landlord.' (page 151)

Section 7 (7) of the Madras Buildings (Lease and Rent Control) Act, 1949 contained a provision similar to Section11 (16) of the Kerala Act. In Nanalal v. G. J. Motorwala (AIR 1973 Guj 131) the question that came up for consideration was whether one of the co-owners of a building can by himself bring a petition for eviction. The Full Bench held:

'We are, therefore, of the view that the extended meaning of the word 'landlord' given in the definition in Section 5, Sub-section (3) cannot be projected into Section 12 and Section 13, Sub-section (1). The landlord referred to in Section12 and Section 13, Sub-section (1) is not a landlord as defined in Section 5, Sub-section (3) but a landlord who is entitled to possession of the premises on determination of the tenancy under the ordinary law of landlord and tenant. A co-owner receiving rent on behalf of himself and the other co-owners or a rent-farmer or a rent-collector is, therefore not entitled to recover possession of the premises let to a tenant on the strength of the artificial definition of 'landlord' in Section 5, Sub-section (3).' (Para 19)

In SectionM. G. Chetty v. Ganeshan (AIR 1975 SC 1750), interpreting the provisions of Sections 2 (6) and 14 (1) (b) of the Madras Buildings (Lease and Rent Control) Act, 1960 the Supreme Court has held:

'This inclusive definition of landlord would clearly take in its sweep the present landlord who holds a life interest in the premises and who admittedly has been , on his own right under the Deed of Settlement as a trustee receiving rents of the premises from the tenants. ...... ...... ...... ..... .... It is clear that when the objection on the score of tlhe landlord being' a holder of life interest and hence incapable of invoking Section14 (1) (b) fails the suit must be decreed.' (Paras 7 and 8).

In Sri Ram Pasricha v. Jagannath (AIR 1976 SC 2335) the question that came up for consideration was whether a landlord who is a co-owner of the building with others is the owner within the meaning of Section 13(1)(f) of the West Bengal Premises Tenancy Act, 1956. In the above decision reference was made to Nanalal's case (AIR 1973 Guj 131) (FB) where eviction was allowed on the petition of a co-owner for the reason that it was the who let out the building to the tenant. In Sri Raja Lakshmi Dyeing Works v. Rangaswamy (AIR 1980 SC 1253) it was held;

'A concurrent finding, based on evidence, that the landlord did not bona fide require the premises for his own use and occupation is not in our view a finding which can be touched by the High Court exercising jurisdiction under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.' (Para 4)

In Rebecca Thomas v. C. J. Joseph (1982 Ker LT (SN) 55) it has been held that a finding as to bona fide requirement may or may not be a question of fact and law, but a finding on a question by the Tribunals which are primarily responsible for facts cannot be slightly reversed and that if two views were possible, the one taken concurrently by Courts below was certainly entitled to great weight notwithstanding the infirmities in their reasoning. In M. C. Chacko v. State Bank of Travancore (AIR 1970 SC 504) it has been held:

'It is settled law that a person not a party to a contract cannot subject to certain well recognised exceptions, enforce the terms of the contract; the recognised exceptions are that beneficiaries under the terms of the contract or where the contract is a part of the family arrangement may enforce the covenant.' (Para 9)

This decision is also distinguishable since in this case the petitioner-tenant does not want to enforce any rights under Ext. A-8 sale deed. His contention is that the vendor cannot confer by Ext. A-8 on the respondent the right to file a petition for eviction and that it will not amount to an authorisation insisted by Section 11 (16) of the Act.

5. Sections 2 (3) and 11 (16) of the Act reads:

'(3) 'Landlord' includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if fine building were let to a tenant.'

'(16) Notwithstanding anything contained in this section, no person who is receiving or is entitled to receive the rent of a building merely as an agent of the landlord shall, except with the previous written consent of the landlord, be entitled to apply for the eviction of a tenant.'

Under Section 11 of the Act, the petition for eviction has to be filed by the landlord. The definition of landlord in Section 2 (3) is an inclusive definition. As per the definition, landlord' includes not only a person who receives rent or is entitled to receive rent on his own account (that is as owner) but also an agent, trustee, executor, administrator, receiver or guardian. Under Section 11 of the Act, the petition for eviction has to be filed by the landlord. But there is a restriction imposed by Sub-section (16) that a person who receives rent merely as agent of the landlord cannot file a petition for eviction without the previous written consent of the landlord. So, only all those who are included in the inclusive definition in Section 2 (3) except the agent mentioned therein can file a petition for eviction without the previous consent of the landlord. There is reason for this because, except the agent, the trustee, the executor and all others are persons who are legally competent to sue. An agent, it goes without saying, can only do whatever his principal authorises him to do. A life estate holder or a person who is given a right to reside in the building being not included in the definition of landlord will not get a right to file a petition for eviction without consent even if he is an agent for collecting rent. The words 'merely as an agent* will not also help him. Then the question is who should give consent Subsection (16) is clear that the landlord should give consent. The vendor of the landlord cannot hence give consent. Even otherwise, the sale deed Ext. A-8 cannot confer any rights on the respondent. It is after the recitals, which amount to an outright sale, that we find in Ext. A-8 some rights are attempted to be created in favour of the respondent. The petitioner is not trying to enforce any rights conferred by Ext. A-8. The petitioner's stand is that by Ext. A-8 no rights can be conferred on the respondent. So, the fact that the petitioner is not a party to Ext. A-8 will not stand in the way as he is not enforcing any rights under Ext A-8. The right to file a petition for eviction can be given to the vendee. Even if that is not given as per the sale deed, the vendee will have all the rights of a landlord under the Kerala Buildings (Lease and Rent Control) Act, 2 of 1965. But nobody else will have it. As far as Ext, A-7 is concerned, as it is not properly proved, it cannot help the respondent.

6. In this view of the matter, the Appellate Authority committed an error of law in not interfering with the eviction ordered by the Rent Control Court on the petition for eviction filed by the respondent. In that case, the District Judge was bound to interfere with that decision in revision. Having not done this, tfhe District Judge has committed a material illegality in the exercise of his jurisdiction. So, the order impugned is set aside. The petition for eviction will stand dismissed. The civil revision is allowed. No costs.


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