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Parthasarathy and anr. Vs. Krishnamoorthy and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported in(1948)2MLJ391
AppellantParthasarathy and anr.
RespondentKrishnamoorthy and anr.
Cases ReferredMellor v. Watkins
Excerpt:
- - the first plaintiff failed to pay the rent in respect of the said premises for the month of july, 1947, before the end of august, 1947. in view of the default so made, the defendant filed an application before the rent controller, madras, against the first plaintiff under section 7 of madras act xv of 1946 (hereafter called the act) praying for ejectment of the first plaintiff from the said premises. if the controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied--(i) that the tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days of the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next.....subba rao, j.1. this is a suit for declaration that the order of the rent controller dated the 5th april, 1948, passed in l. dis. no. 4985 h. r. c. of 1947 in favour of the defendant is invalid, without jurisdiction and unenforceable as against the plaintiffs and also for a permanent injunction restraining the defendant from enforcing the said order.2. house, ground and premises no. 403, mint street, george town, madras, is owned by the defendant. the corporation gave separate sub-numbers to portions of the said premises. in or about the middle of august, 1943, the first plaintiff obtained from the defendant a lease of a portion of that building numbered as 4/403, mint street, on a monthly rental of rs. 55. subsequently, by agreement between the parties the rent was increased to rs. 60.....
Judgment:

Subba Rao, J.

1. This is a suit for declaration that the order of the Rent Controller dated the 5th April, 1948, passed in L. Dis. No. 4985 H. R. C. of 1947 in favour of the defendant is invalid, without jurisdiction and unenforceable as against the plaintiffs and also for a permanent injunction restraining the defendant from enforcing the said order.

2. House, ground and premises No. 403, Mint Street, George Town, Madras, is owned by the defendant. The Corporation gave separate sub-numbers to portions of the said premises. In or about the middle of August, 1943, the first plaintiff obtained from the defendant a lease of a portion of that building numbered as 4/403, Mint Street, on a monthly rental of Rs. 55. Subsequently, by agreement between the parties the rent was increased to Rs. 60 per mensem. The first plaintiff failed to pay the rent in respect of the said premises for the month of July, 1947, before the end of August, 1947. In view of the default so made, the defendant filed an application before the Rent Controller, Madras, against the first plaintiff under Section 7 of Madras Act XV of 1946 (hereafter called the Act) praying for ejectment of the first plaintiff from the said premises. To that application, the second plaintiff was not made a party. The Rent Controller made an order on the 5th April, 1948, for eviction of the first plaintiff. The first plaintiff preferred an appeal to the Presidency Court of Small Causes, Madras, against the said order of the Rent Controller and the appeal also was dismissed. The second plaintiff is the brother of the first plaintiff. He claims to be a sub-tenant under the first plaintiff since 1945 of a room in the said premises. The plaintiffs filed this suit for the aforesaid reliefs mainly on the ground that the Rent Controller had no jurisdiction to order eviction as there had not been a previous or antecedent determination of the tenancy in accordance with law. The second plaintiff states that as there was no termination of the tenancy in accordance with law, his interest in the sub-tenancy continues and as he is not a tenant within the meaning of the Act, he is not liable to be evicted by any order passed by the Rent Controller. Further, the Rent Controller's order could not affect his rights as sub-tenant to continue to occupy his portion of the premises as he was not a party to that order. The defendant in his written statement stated that this Court has no jurisdiction to entertain this suit and the second plaintiff is not a sub-tenant of the first plaintiff.

3. The following issues were framed:

1. Whether the suit is maintainable ?

2. Whether the second plaintiff is a sub-tenant ?

4. Learned Counsel for the defendant contends relying upon Sections 7 and 12 of the Act, that this Court has no jurisdiction to entertain this suit. Section 7 reads as follows:

(i) A tenant in possession of a building shall not be evicted therefrom, whether in execution of a decree or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section:

Provided that nothing contained in this section shall apply to a tenant whose landlord is the Provincial Government:

Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. (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--

(i) that the tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days of the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, or

(ii) that the tenant has after the commencement of this Act without the written consent of the landlord

(a) transferred his right under the lease or sub-let the entire building or any portion thereof, or

(b) used the building for a purpose other than that for which it was leased, or

(iii) that the tenant has committed such acts of waste as are likely to impair materially the value or utility of the building, or

(iv) that the tenant has been guilty of such acts and conduct which are a nuisance to the occupiers of buildings in the neighbourhood, or

(v) that where the building is situated in a place other than a hill station, the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause,

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.

(3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession

(i) in the case of a residential building, if he requires it for his own occupation and if he is not occupying a residential building of his own in the city, town or village concerned;

(ii) in the case of a non-residential building, if he is not occupying for purposes of a business which he is carrying on, a non-residential building in the city, town or village concerned which is his own to the possession of which he is entitled:

Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this sub-section before the expiry of such period: Provided further that where a landlord has obtained possession of a building under this clause, he shall not be entitled to apply again under this clause:

(i) in case he has obtained possession of a residential building, for possession of another residential building of his own;

(ii) in case he has obtained possession of a non-residential building, for possession of another non-residential building of his own.

(b) The Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller and if the Controller is not so satisfied, he shall make an order rejecting the application:Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate....

5. Section 12.is in the following terms:

(1) (a) The Provincial Government may, by general or special order notified in the Fort St. George Gazette, confer on such officers and authorities as they think fit, the powers of appellate authorities for the purposes of this Act, in such areas or in such classes of cases as may be specified in the order.

(b) Any person aggrieved by an order passed by the Controller may, within fifteen days from the date of receipt of such order, prefer an appeal in writing to the appellate authority having jurisdiction.

(2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision on the appeal.

(3) The appellate authority shall send for the records of the case from the Controller and after giving the parties an opportunity of being heard, and, if necessary, after making such further inquiry as he thinks fit either personally or through the Controller, shall decide the appeal.

(4) The decision of the appellate authority and subject only to such decision, an order of the Controller shall be final and shall not be liable to be called in question in any Court of law whether in a suit or other proceeding or by way of appeal or revision.

6. Under Section 7 a tenant shall not be evicted except in accordance with the provisions of this section. Any person aggrieved by such an order can prefer an appeal under Section 12 and under Clause (4) of that section, the decision is made final and shall not be liable to be called in question in any Court of law whether in a suit or other proceeding or by way of appeal or revision. It is argued that the Act is a self-contained one and a combined reading of Sections 7 and 12 clearly shows that the jurisdiction of civil courts is ousted. The law on the subject is well settled and it is not necessary to consider in extenso the various decisions. It is enough to extract the proposition of law so well stated in Secretary of State v. Mask & Co. (1940) 2 M.L.J. 140 : 1940 L.R. 67 IndAp 222 : I.L.R. (1940) Mad. 599. Lord Thankerton says:

It is settled law that the exclusion of the jurisdiction of the Civil Courts, is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

The same principle has been stated succinctly in another judgment of the Judicial Committee arising under Section 16 of the Defence of India Act, Emperor v. Sibnath Banerji (1945) 2 M.L.J. 325 : 1945 F.L.J. 222.

7. Lord Thankerton observed:

Sub-section (1) assumes that the order is made in exercise of the power, which clearly leaves it open to challenge on the ground that it was not made in conformity with the power conferred.

The Civil Court can therefore always interfere if a special tribunal exceeds the limits of jurisdiction conferred upon it. As stated by Sir George Rankin in Mohammad Nawaz Khan v. Bhagata Nand (1938) 2 M.L.J. 323 : 1938 L.R. 65 IndAp 301 : I.L.R. 1938 Lah. 514, it is for the Civil Court to determine in the last resort the limits of the powers of a Court of special jurisdiction.

8. Mr. Radhakrishnayya, appearing for the defendant, relied on the Full Bench decision in Manicka Gramani v. Ramachandra Ayyar : (1898)8MLJ210 That was a decision arising under Madras Act VIII of 1865. The defendant was a shrotriemdar and the plaintiffs were tenants on the estate against whom orders of ejectment had been made under Section 10 of the Rent Recovery Act. The suits were brought to have these orders set aside. The Full Bench held that the suits were not maintainable. In that case the question to be decided was whether a tenant against whom a judgment had been properly passed by the Collector under Section 10 of the Rent Recovery Act could, in a separate suit in a Civil Court, call in question the order of ejectment. Under Section 76 of that Act the Civil Court's jurisdiction was ousted. Under Section 10 the Collector has jurisdiction to decide with regard to the propriety of any patta which the tenant to whom it has been tendered has refused to accept. An appeal has been provided for against the order of the Collector to the District Court under Section 69. In that case the Collector decided as regards the' propriety of the patta and also passed an order in ejectment as the tenant made default in complying with the conditions of the patta. The plaintiffs against whom an order of ejectment was passed filed suits to set aside the order of the Collector. Their Lordships held that the suit was not maintainable as on a construction of Section 76 the intention of the Legislature to make the judgment and order of the Collector final except in cases specially provided for, was clear. This decision has no bearing at all on the question to be decided as in that case the Collector did not exceed his powers or act beoynd the jurisdiction conferred on him. It therefore follows that if the Rent Controller exceeded the powers conferred on him under Section 7, the Civil Court has jurisdiction to set aside that order.

9. Mr. Radhakrishnayya next argued that as the first plaintiff did not question the jurisdiction of the Rent Controller in the application filed by the defendant under Section 7 of the Act or in the appeal filed before the Presidency Court of Small Causes, he is now precluded from questioning the same in the Civil Court. It is settled law that parties cannot confer jurisdiction on tribunals if otherwise they have not got such jurisdiction. If, as contended by the plaintiffs, the Rent Controller has jurisdiction only to evict a tenant at the instance of the landlord who had a present right to possession, the order of the Rent Controller directing the eviction at the instance of the landlord who had not got such right was obviously an order passed without jurisdiction. If he had no jurisdiction the fact that the first plaintiff did not question the jurisdiction could not confer jurisdiction on the tribunal. This principle is so well-recognised that I need not cite any cases except to extract a passage from Halsbury's Laws of England, Vol. 8, page 532:

Where, by reason of any limitation imposed by statute .... a Court is without jurisdiction to entertain any particular action or matter, neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the Court, nor can consent give a Court jurisdiction if a condition which goes to the jurisdiction has not been performed or fulfilled.

The law on this subject is fully and correctly stated in this paragraph. The condition, viz., the right to evict was not fulfilled at the time the application under Section 7 was filed before the Rent Controller and therefore the Rent Controller had no jurisdiction to entertain the application. His order is without jurisdiction and is therefore liable to be questioned in a Civil Court.

10. The next question is whether the Rent Controller had jurisdiction to order eviction in the particular circumstances of the case. The decision turns upon the construction of Section 7 of the Act which I have already set out. Before I proceed with the construction of the section, it is as well that I give the circumstances under which the Act came to be passed and the state of law that existed prior to its enactment governing the relationship between landlord and tenant. The rights of lessor and lessee are governed by the Transfer of Property Act. Under Section 105 a lease of immoveable property is a transfer of a right to enjoy such property for consideration. The said lease can be terminated in the manner provided by the Act, viz., by efflux of time, by forfeiture or by giving the requisite notice to quit. Section 111 provides the manner in which the lease can be terminated. For the purposes of this case, the relevant clause is Clause (h) of Section 111, i.e., on the expiration of a notice to determine the lease, or to quit, or of intention to quit the property leased, duly given by one party to the other. Under Section 106 in the absence of a contract or local law or usage to the contrary, a lease of immoveable property for a purpose other than agriculture or manufacture, shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy. If Madras: Act XV of 1946 was not enacted, the plaintiffs could be evicted by the defendant only after the termination of the tenancy for one or other of the reasons mentioned in Section 111 of the Transfer of Property Act. He should have to give notice of fifteen days expiring with the end of a month of the tenancy. Till the tenancy was terminated he had no right to evict the tenant.

11. In exercise of the powers conferred by Clause (bb) of Sub-rule (2) of Rule 81 of the Defence of India Rules, His Excellency the Governor made an order, the Madras Non-Residential Building Rent Control Order, 1942, and in super session of the said order, another order was passed in 1945. Owing to war conditions, house owners with the hope of getting high rents, were evicting tenants which they were entitled to do under the Transfer of Property Act. This eviction not only caused great hardship to the tenants but was impeding the war effort as many of the tenants happened to be persons in essential services. In the circumstances this order was passed imposing further restrictions on a landlord, who could, after the passing of the order, evict the tenant only if one or other of the events mentioned in that order happened. In supersession of this order, Madras Act XV of 1946 was passed. The preamble to this order makes it clear the purposes for which this Act was enacted. It says:

Whereas it is expedient to regulate the letting of residential and non-residential buildings and to control the rents for such buildings and to prevent unreasonable eviction of tenants therefrom in the Province of Madras; It is hereby enacted as follows.

So the main object of this Act is to prevent unreasonable eviction and not to confer any new rights of eviction on the landlord. The Act presupposes the existence of a landlord's right to immediate possession. But for this Act he could demand immediate possession; but under this Act, his right to immediate possession is limited by the provisions of Section 7. Though he has got a right to evict the tenant under general law, he cannot get possession unless one or other of the conditions specified therein have been complied with. Mr. Radhakrishnayya contended that the provisions of Section 7 have superseded the contractual terms between the parties and the landlord's right to evict is now governed only by Section 7 of the Act. If Mr. Radhakrishnayya's argument is accepted it would lead to the position that though the term of the contract was for a period of fifty years and there was no clause providing for forfeiture for non-payment of the rent within fifteen days of the expiry of the term fixed in the agreement of tenancy, the landlord would be entitled to evict the tenant on such default in payment of rent. If so construed the section would defeat the purpose of the legislation. Instead of giving the relief which the Legislature intended to give to the tenants, it would be depriving the tenants of the vested rights which they had before the enactment. Unless the section expressly says so or by necessary implication such an intention must be imputed to the Legislature, it is impossible to construe the section in the manner Mr. Radhakrishnayya asks me to do. The general principle governing the construction of Acts of this nature is well settled. A passage from Maxwell on the Interpretation of Statutes, 8th edition, may usefully be cited as it completely and accurately states the law on the subject. At page 73 the learned author says:

One of these presumptions is that the Legislature does not intend to make any substantial alteration in the law beyond what it explicitly declars, either in express terms or by clear implication, or in other words, beyond the immediate scope and object of the statute. In all general: matters outside those limits the law remains undisturbed. It is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness.

Another principle which may be borne in mind in construing Section 7 of this Act may also be noticed. This is stated with clearness by the Court of Appeal in Flannagan v. Shaw (1920) 3 K.B. 96. It is unnecessary to state the facts of that case. Scrutton, L.J., refers to the words of A.L. Smith, J., in Kutner v. Phillips (1891) 2 Q.B. 267:

Now a repeal by implication is only effected when the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one, that the two cannot stand together .Unless two acts are so plainly repugnant to each other, that effect cannot be given to both at the same time, a repeal will not be implied, and special acts are not repealed by general Acts unless there is some express reference to the previous legislation, or unless there is a necessary inconsistency in the two Acts standing together.

I will therefore proceed to consider whether by enacting Section 7 of the Act, the Legislature expressly repealed the provisions of the Transfer of Property Act, so far as they related to the tenants governed by the Rent Control Act or whether I mus hold by necessary implication that such was the intention of the Legislature. There is no express provision in the Act or express words in Section 7 repealing the provisions of the Transfer of Property Act in so far as the rights of the landlord and tenant are governed by this Act. Indeed the words of Section 7 are couched in negative form and it is impossible to read in the section any such words of repeal. When the Legislature says that a tenant in possession of a building shall not be evicted therefrom except in accordance with the provisions of the section, it cannot possibly mean that the landlord can evict the tenants even if he has no right to evict them under the Transfer of Property Act. I cannot help thinking that if the Legislature had intended to repeal the provisions of the Transfer of Property Act, it would have said so in plain terms. Can it be said that by necessary implication the Legislature intended to repeal the terms of the Transfer of Property Act ?

12. Mr. Radhakrishnayya laid stress on the words ' whether before or after the termination of the tenancy' in Section 7(1). It is argued that as under Section 7(1), the landlord could file an application for eviction before the termination of the tenancy, it necessarily follows that he could file the application before the right to evict accrued to him. I must concede that the words ' before the termination of the tenancy' are rather ambiguous. But in my view, the word 'termination' could be given in the context its natural meaning, the termination of the tenancy by efflux of time. If so understood, it would only mean that the landlord before the efflux of time, may get his right to possession by forfeiture or giving the requisite notice to quit.

13. Mr. Radhakrishnayya relied on the second proviso to Section 7(1) and pertinently asked why that proviso should have been enacted if the landlord could file a suit in spite of Section 7(1). That proviso only confers preliminary jurisdiction on the Rent Controller to decide whether the denial of the title of the landlord or the claim of permanent tenancy by the tenant was bona fide and in that particular contingency, the proviso also confers a limited jurisdiction on the Court for eviction on any of the grounds in Section 7. From the scheme of the Act it is clear that a landlord, after the enactment of the Act, cannot file a suit for eviction against the tenant and this proviso is only an exception to that general prohibition. On the other hand, the proviso itself gives a clear indication that the Rent Controller has no jurisdiction to decide questions other than those that were specifically provided for in Section 7(1) of the Act and where it intended to give any jurisdiction which affected the rights of the parties in general law, it specifically stated so. It does not either expressly or by necessary implication say that the tenant cannot file a suit even questioning the jurisdiction of the Court in cases where the Rent Controller exceeded his jurisdiction. Learned Counsel also relied on the proviso 1 to Section 7(3)(a)(ii) of the Act. Section 7(3)(a) deals with a landlord's right to apply to the Rent Controller for an order directing the tenant to put the landlord in possession under certain contingencies. But the proviso says that he cannot do so if a term has been fixed, before the expiry of the term. This rule only confers a power on the landlord to evict the tenant subject to the proviso; but neither the rule nor the proviso support the argument that the landlord can evict the tenant under Section 7(3)(a) of the Act in other cases before his right to possession accrued. The fact that the proviso makes it clear that the right under Section 7(3)(a) is subject to the term agreed upon between the parties cannot be construed to imply that the landlord can evict irrespective of the provisions of the Transfer of Property Act. It would be stretching the language to a breaking point.

14. Learned Counsel also relied on Clause (4) of Section 12. It provides that the order of the Rent Controller cannot be questioned in a suit. As I have already pointed 5ut, this clause necessarily cannot apply to orders passed by the Rent Controller without jurisdiction. If he acts within the limits of his power, his order is final and cannot be questioned in a Court of law. Mr. Radhakrishnayya also emphasised the word ' tenant ' in Section 7(1) and argued that if Section 7(1) is intended to apply to a case where the landlord has acquired a right to possession, the word tenant would become meaningless as after the landlord acquired the right to evict, the person in occupation of his house ceases to be a tenant. This argument ignores the definition of the word tenant under the Act. Under the Act, ' tenant ' means any person by whom or on whose account rent is payable for a building and includes a person continuing in possession after the termination of the tenancy in his favour. If' tenant ' under Section 7(1) is tenant as defined, the meaning of the section would be clear and there would not be any difficulty in construing the section. This view was also expressed in an unreported judgment of Somayya and Rajamannar, JJ., in C.M.A. No. 202 of 1945. The learned Judges in that case observed:

When we speak of a suit by a landlord for eviction of a tenant, no doubt there is strictly an inconsistency, because if he were a tenant, the landlord could not evict him. For some reason or other either by efflux of time or by the issue of a notice to quit or by forfeiture and re-entry, a tenant must have ceased to be a tenant before the landlord can claim to evict him.

The construction I am putting on Section 7 of the Act gets support from another Bench decision of this Court in Narayanan Nair v. Kunhan Mannadiar : (1947)2MLJ559 . That case arose under the Malabar Tenancy Act. The facts are these. Four items of landed property had been leased by the jenmi to a tarwad. At the end of the term of the lease, the lands were held on a tenancy from year to year. The tenants in their turn sub-leased the properties. The suit was filed by the landlord for evicting the tenants and for obtaining possession. From the facts it is clear that at the time the suit was instituted, the tenancy was from year to year. The suit was governed by the provisions of Section 14 of the Malabar Tenancy Act. The relevant provisions of that section are:

No suit for eviction of a cultivating verumpattamdar from his holding shall lie at the instance of his landlord except on the following grounds:

(1) denial by the tenant of the landlord's title;

(2) wilful waste committed by the tenant;

(3) non-payment of rent;

(4) collusion with a stranger to encroach on the holding or a part of it adversely to the landlord;

(5) the holding being required by the landlord for his own cultivation, or for that of any member of his family, or for

(6) building purposes;

(7) failure by the tenant to pay an advance of rent or to give security when directed so to do by a Court, pursuant to Section 13(3). A proviso to Section 14 limits eviction to the part of the property encroached upon or required for building under clauses 4 and 6.

The landlord in that case did not terminate the tenancy in accordance with law but straight away filed the suit for eviction on one or other of the grounds mentioned in Section 14. Their Lordships dismissed the suit and held that the plaintiff was not entitled to an order for possession Some of the observations made by the learned Chief Justice are apposite and may be cited:

Section 14 does not, in my view, confer upon a landlord any right to obtain eviction either upon the happening of the events specified in it or any other circumstances. It provides that no eviction shall lie except upon the grounds specified in the section. The section confers no rights whatever upon the landlord; it does confer rights upon a tenant inasmuch as he can resist a claim for eviction brought by the landlord save when the claim is made on a ground set out in Section 14; for instance, it would seem, that upon expiration by effuxion of time of a term of years of the land to which the Act applies, the landlord being unwilling for the tenant to remain, so that a tenancy from year to year, after the expiration of the term of years does not arise, a suit for possession could be resisted by the tenant in the absence of the landlord being able to show the existence of one of the grounds Nos. 1 to 7 contained in the section. Section 14 does not change, or in any way interfere with, the ordinary law, save to the extent to which it provides protection to the tenant.

Later on the learned Judge proceeds to observe:

Unless and until a tenancy or a lease is determined, a 1 and lord is not entitled to obtain from a Court an order for eviction or possession.

I have cited this passage in extenso as the principle equally applies to a construction of Section 7 of the Act. Here, as in that case, for the protection of the tenants, Section 7 has been enacted and it does not confer on the landlord any right of eviction upon the happening of the events specified in Section 7. Here, as there, it only provides that no eviction shall lie except on the grounds specified in the section. For the aforesaid reasons I hold that the Rent Controller's order and that of the Presidency Court of Small Causes in appeal against that order were made without jurisdiction and they are liable to be set aside.

15. Issue 2.-The case of the second plaintiff is that he is a sub-tenant under the first plaintiff. The second plaintiff is the brother of the first plaintiff. There is no written rental agreement evidencing the tenancy. In support of the alleged subtenancy, the plaintiffs examined three witnesses. P.W. 1 is Jumna Sa, accountant in the office of the Commercial Discount House, Ltd. This company gave the second plaintiff a loan on the pledge of the goods in 403, Mint Street, which is the suit house, viz., barley, arrow-root flour and tin sheets. This loan is technically called key loan. The key of the room in which these goods were stored was handed over to this company. The accountant would go and give delivery as and when the second plaintiff sold the goods and the goods so sold had to be delivered to the purchasers. He admits in cross-examination that there was no board outside the room. The evidence is consistent also with the case of permissive possession, of the second plaintiff. Even if the second plaintiff stored his goods in that room with the permission of his brother, the pledge would have followed the same procedure. P.W. 2 is the first plaintiff himself. He deposes that he was a tenant under the defendant on a monthly rental of Rs. 55. He says that he sub-leased the room in the occupation of his brother to him in or about August 1945 and the latter began to pay rent only from March, 1947, and he told the defendant before he sub-let the premises to his brother. This witness is an interested witness and his evidence cannot be believed unless corroborated by reliable documentary or oral evidence. As I have already stated no lease deed was executed by the second plaintiff in his favour. He did not produce his accounts to show that he received any rent nor did he produce any receipts to support his case. Indeed the fact that a portion of the house has been under a subtenant was not stated either before the Rent Controller or even before the Chief Judge of the Court of Small Causes. That fact is mentioned for the first time in this suit. I am not inclined to accept the evidence of this witness. The second plaintiff is examined as P.W. 3. He supports his case in the plaint. He says he is a chemist and druggist and has taken one of the rooms from his brother on rent and was storing barley, arrow-root flour and tin plates in the said room and with the knowledge of the defendant. At first he was paying Rs. 12-8-0 and later the rent was increased to Rs. 15. In support of his evidence he filed his ledgers and day books for 1947-48, Exs. P-4, P-5 and P-6. The account books show that the door number of house No. 406 was corrected into house No. 403. The explanation offered is not satisfactory. He says that the house number was first entered by mistake as 406 and he corrected it into 403. It must be an extraordinary coincidence that the correction must find a place only in the relevant entry when in the entire page where this entry was found in both the ledger and the day book there were no similar corrections. Further though the tenancy started according to the evidence in the year 1945, no rent was paid till 1947. The only two entries in regard to payment of rent before September, 1947, when the application before the Rent Controller was filed are dated March 2nd, 1947, and January 12th, 1948. On 2nd March, there is a debit entry of Rs. 35 which the witness says represents the rent for January and February. In January, 1948, another sum of Rs. 50 is debited towards rent. Therefore the total amount of the rent paid from January to the end of December, 1947, is only Rs. 75. It is not explained why the rent for the other six months was not paid. These account books do not bear the seal of the Income-tax Officer or the Sales Tax Officer. The explanation offered by this witness was that he was not an Income-tax assessee and the Sale Tax Officer did not call for his accounts till now. I am of opinion that these entries in the account books were made after troubles arose between the parties or in anticipation of a possible attempt by the landlord to evict them from the premises. It is more likely and it is consistent with probabilities that the second plaintiff was allowed by his brother to be in permissive possession of a room in the premises which he has taken on lease from the defendant. The second plaintiff cannot have higher rights than his brother the first plaintiff. If the first plaintiff is liable to be evicted the second plaintiff being only in possession with his permission cannot obstruct delivery to the defendant.

16. Mr. V.V. Srinivasa Ayyangar for the plaintiffs contended that so far as the second plaintiff is concerned the Act has no application as he is not a tenant within the definition of the Act. Further he was also not a party to the proceedings before the Rent Controller and as such the order of eviction passed by the Rent Controller against the first plaintiff cannot bind the second plaintiff. In either view he maintains that the suit is maintainable at his instance. Assuming that the second plaintiff is a sub-tenant, he cannot be in a better position than the tenant himself. If the tenant is liable to be evicted either under the terms of the contract or by virtue of the provisions of any statute regulating the rights of the parties, the sub-tenancy also would come to an end. Mr. Radhakrishnayya relied on Tusuf v. Jyotishchandra Banerji I.L.R. (1932) Cal. 739, in support of his contention that the sub-tenant has not got higher rights than the tenant and that he is not a necessary party to any proceedings against the tenant. In that case it was held that when a landlord obtains a decree for ejectment on forfeiture or determination of the lease by notice against his tenant, the latter's sub-tenants, licensees or servants in actual possession of the premises are ' persons bound by the decree ' within the meaning of Rule 35 of Order 21, of the Code of Civil Procedure. It was also held that a valid notice to quit not only determines the original demise, but any sub-lease which the tenant might have made, provided the sub-tenant has no right independent of the right of his lessor. The principle of this case will apply with equal force to the present case. The subtenant derived his title from the tenant. If the right of the tenant to continue in possession is extinguished by statute the rights of the sub-tenant also must necessarily cease. The decision reported in Timmappa v. Rama Venkanna I.L.R. (1896) Bom. 311 also lays down the same principle. Farren, C.J., at page 313 observed:

A sub-lease differs from the assignment of a lease in that it creates no privity of contract between the sub-tenant and the landlord.... The English authorities show conclusively that a landlord putting an end by a proper notice to the tenancy of his tenant thereby determines the estate of the under-tenants of the latter. This is undoubted law--Roe v. Wiggs (1806) 2 Bos. & P. 330, Mellor v. Watkins (1874) L.R. 9 Q.B. 400; Woodfall on Landlord and Tenant, page 359.

It is unnecessary to multiply cases on the subject. If the landlord acquired a right to evict his tenant, the first plaintiff, after giving a valid notice to quit under the provisions of the Transfer of Property Act, the second plaintiff who cannot claim higher rights than the tenant, is liable to be evicted and the fact that he was not made a party to the proceedings before the Controller, does not affect the question as he would be bound by the order that was passed against the tenant obtained without any fraud or collusion. I therefore find on issue 2 that the second plaintiff is not a sub-tenant and even if he were one, he would be liable to be evicted.

17. For the aforesaid reasons and in view of my finding on issue I, the plaintiffs would be entitled to a decree as prayed for. The defendant will pay the costs of the first plaintiff and the second plaintiff will pay the costs of the defendant.


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