Skip to content


Rajamannar Chettiar Vs. Velayutha Chettiar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1984)2MLJ467
AppellantRajamannar Chettiar
RespondentVelayutha Chettiar and anr.
Cases ReferredV. Dhanapal Chettiar v. Yesodai Ammal
Excerpt:
.....subletting of the premises. 5. while admitting the tenancy under the petitioner as well as the sublease in favour of the 2nd respondent herein, the 1st respondent in his counter had set up a case of tenancy even in 1951, though he did not disclose the name of the person from whom he took the lease. to the extent to which rights available to a person under the general law are curtailed by a special enactment or legislation as the act in this case, such general right cannot prevail over the provisions of the special enactment and the rights as well as the liabilities will have to be ascertained and determined within the four corners of the act only. [1978]1scr723 ,the supreme court pointed out at page 61, it is well settled that where the rent control and restrictions acts are in..........the liability to be evicted under the stats rent act, not otherwise. in many state statutes, different provisions have been made as to the grounds on which a tenant can be evicted and in relation to his incurring the liability to be so evicted. some provisions overlap those of the transfer of property act. some are new which are mostly in favour of the tenants but some are in favour of the landlord also. that being so the dictum of this court in brij raj's case : [1951]2scr145 , comes into play and one has to look to the provisions of law contained in the four corners of any state rent act to find out whether a tenant can be evicted or not. the theory of double protection or additional protection, it seems to us, has been stretched too far and without a propel and due consideration of.....
Judgment:
ORDER

V. Ratnam, J.

1. The landlord who succeeded before the Rent Controller, Pondicherry, in securing an order for eviction against the respondents herein and who lost before the Appellate Authority is the petitioner in this civil revision petition. The petitioner filed H.R.C.O.P. No. 188 of 1982 before the Rent Controller, Pondicherry, under Section 10(2)(i) and (ii)(a) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 as amended by the Pondicherry Buildings (Lease and Rent Control) (Amendment) Act, 1980 (hereinafter referred to as the Act) praying for an order of eviction against the respondents herein on the ground that his tenant, the 1st respondent herein, had committed wilful default in the payment of rents from July, 1981 onwards and has also, without his consent in writing, sub-leased the premises let out to him in favour of the 2nd respondent. In the counter filed by the 1st respondent herein, he stated that the rent had been paid by him regularly to the petitioner and that the petitioner had consented to the sublease of the premises by the 1st respondent in favour of the 2nd respondent and only pursuant to that, the sublease had been effected by him in favour of the 2nd respondent in July, 1981. A further plea was also raised by him to the effect that under the lease agreement entered into between the petitioner and the 1st respondent, he had the right to sublease the property which right had accrued in his favour even in 1951 long prior to the coming into force of the Act in Pondicherry on 1-8-1969. The 2nd respondent in his counter took up the stand that the 1st respondent represented to him that he had the power and authority to sublease and believing that representation, he had paid certain amounts to the 1st respondent and took also certain machineries for carrying on manufacture of vermicelli and therefore, he is not liable to be evicted.

2. Before the Rent Controller, on behalf of the petitioner, Exs. P-1 and P-2 were filed and the petitioner was examined as P.W. I, while, on behalf of the respondents, the 1st respondent, examined himself as R.W.I. On a consideration of the oral as well as the documentary evidence, the Rent Controller concluded that the lease of the premises was granted by the petitioner in favour of the 1st respondent only in 1973 after the provisions of the Act had come into force and therefore, the Articles of the French Code Civil will not be applicable to the lease in question and as no consent in writing was given by the petitioner for subleasing the premises to the 2nd respondent, the petitioner had made out a case for the eviction of the respondents on the ground that there had been an unauthorised subletting of the premises. In the result, an order for eviction was passed against the respondents herein.

3. Aggrieved by this, the 1st respondent herein had preferred an appeal in M.A. No. 43 of 1983 to the appellate authority (Second Additional District Judge), Pondicherry and the appellate authority took the view that Article 1717 of the French Code Civil would govern the lease between the petitioner and the 1st respondent and therefore, a sublease was permissible and in the absence of anything to indicate that the first respondent was prohibited from so subletting the premises, the petitioner cannot claim to be entitled to an order for eviction against the respondents on the ground of unauthorised subletting. In this view, the appeal was allowed and the application for eviction was dismissed. It is the correctness of this order that is challenged in this civil revision petition.

4. The learned Counsel for the petitioner contends that even on the case of the 1st respondent, there had been subletting after the coming into force of the provisions of the Act and such subletting haying taken place without the written consent of the petitioner, the respondents have rendered themselves liable to be evicted under Section 10(2)(ii)(a) of the Act and the appellate authority was in error in holding that such a sublease would be protected by the provisions of Article 1717 of the French Code Civil even after coming into force of the Act with reference to the Pondicherry territory. Per contra, the learned Counsel for the 1st respondent would contend that the lease in question commenced prior to the coming into force of the Act on 1-8-1969 and as per Article 1717 of the French Code Civil, the subletting by the lessee was recognised and it is only in the exercise of such a right, the first respondent had sublet the premises in favour of the 2nd respondent and that would not enable the petitioner to seek an order for eviction against the respondents.

5. While admitting the tenancy under the petitioner as well as the sublease in favour of the 2nd respondent herein, the 1st respondent in his counter had set up a case of tenancy even in 1951, though he did not disclose the name of the person from whom he took the lease. In the course of his evidence as R.W.I, the 1st respondent stated that in 1951, there was an oral lease in respect of the premises in question by one Annamalai, the paternal uncle of the petitioner. He would further submit that Annamalai gave him permission even in 1951 to sublease the premises. In the course of his cross-examination, R.W.I would admit that there is no proof to show that he was a tenant from 1951 onwards and that whether he was a tenant only from 1973 onwards can be said only after looking into the accounts. In the course of the cross-examination of P.W.I by the 1st respondent herein, he stated that he does not know whether in 1951 his paternal uncle had let out the premises to the 1st respondent but that from 1973 onwards, he had been receiving the rents from the 1st respondent. If really the 1st respondent was a tenant even from 1951 as claimed by him, some evidence in that regard besides the mere oral testimony of R.W.I should have been made available, especially when P.W.I has stated that he does not know whether his paternal uncle Annamalai had leased out the premises in favour of the 1st respondent even in 1951. There is no evidence to show whether any rents had been paid by the 1st respondent to the paternal uncle of the petitioner between 1951 and 1973. That was why R.W.I was forced to admit that he had no materials to establish that he was a tenant from 1951 onwards. In the absence of any evidence on behalf of the 1st respondent to show that the tenancy in respect of the premises commenced under Annamalai, the paternal uncle of the petitioner even in 1951, P.W.1's evidence that from 1973 onwards he had been paid the rents by the 1st respondent deserves to be accepted, as that evidence had remained unchallenged and unrefuted. Thus, on the available evidence, the tenancy between the petitioner and the 1st respondent had commenced in this case only after the coming into force of the Act on 1-8-1969.

6. In view of the admitted subleasing of the premises by the 1st respondent to the 2nd respondent, the only method by which the 1st respondent could protect himself from being evicted is by establishing the consent of the petitioner in writing as contemplated under Section 10(2)(ii) of the Act. There is no dispute in this case that there is no consent in writing given by the petitioner to the 1st respondent permitting him to sublet the premises in his occupation. Obviously, therefore, the 1st respondent had rendered himself liable to be evicted. However, the 1st respondent wants to take advantage of Article 1717 of the French Code Civil to contend that the lease in his favour, though oral, enabled him to sublease the premises. Under Article 1717 of the French Code Civil, the lessee has the right to sublet and even to assign his lease to a third party, unless the contract provides that he shall not do so. This is analogous to the rights of a lessee as secured to him under Section 108(j) of the Transfer of Property Act. In this case, as seen earlier, the lease in favour of the 1st respondent had commenced only in 1973 long after coming into force of the Act and therefore, only a written consent of the petitioner enabling the 1st respondent to sublet would save the respondents from eviction. There is no such written consent in this case. Even assuming that the oral lease in this case was prior to the Act, viz., 1-8-1969 and Article 1717 of the French Code Civil could be applied to such a lease, the 1st respondent cannot avail himself of the right to sublease under Article 1717 of the French Code Civil. To the extent to which rights available to a person under the general law are curtailed by a special enactment or legislation as the Act in this case, such general right cannot prevail over the provisions of the special enactment and the rights as well as the liabilities will have to be ascertained and determined within the four corners of the Act only. Indeed, the Supreme Court had occasion to consider a similar situation under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, in Gappulal v. Thakurji Shriji Dwarkadheeshji and another : [1969]3SCR989 The question that arose was whether the right to sublet available under Section 108(j) of the Transfer of Property Act could be pleaded in answer to a claim for an order of eviction made under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act. 1950 on the ground that there had been a subletting without the permission of the landlord. In holding that if a case for ejectment on the ground of subletting is made out, the tenant is not protected from eviction under the provisions of the Act it held it matters not that the tenant had the right to sublet the premises under Section 108(j) of the Transfer of Property Act. In Smt. Nai Bahu v. Lala Ramnarayan and Ors. : [1978]1SCR723 , the Supreme Court pointed out at page 61, it is well settled that where the Rent Control and Restrictions Acts are in operation, a landlord cannot obtain eviction of the tenant unless he satisfies the requirements of the provisions in those Acts and the general law of landlord and tenant to that extent will give way to the special Act in that behalf. In Pradesh Kumar Bajpai v. Binod Behari Sarkar (dead) by L. Rs. : [1980]3SCR93 , the Supreme Court had to consider the question whether the relief against forfeiture of lease for non-payment of rent provided under Section 114 of the Transfer of Property Act would be available with reference to eviction proceedings initiated under U.P. (Temporary) Control of Rent and Eviction Act, 1947. In pointing out that Section 114 of the Transfer of Property Act cannot be invoked, the Supreme Court referred to V. Dhanapal Chettiar V. Yesodai Ammal : [1980]1SCR334 , Manujendra Dutt v. Purendu Prasad Roy Chowdhury and Ors. : [1967]1SCR475 , and Rattan Lal v. Vardesh Chander and Ors. : [1976]2SCR906 , and drew pointed attention to the following passage occurring in V. Dhanapal Chettiar v. Yesodai Ammal : [1980]1SCR334 :

Why this dual requirement? Even if the lease is determined by a forfeiture under the Transfer of Property Act, the tenant continues to be a tenant, that is to say, there is no forfeiture in the eye of law. The tenant becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under the Stats Rent Act, not otherwise. In many State Statutes, different provisions have been made as to the grounds on which a tenant can be evicted and in relation to his incurring the liability to be so evicted. Some provisions overlap those of the Transfer of Property Act. Some are new which are mostly in favour of the tenants but some are in favour of the landlord also. That being so the dictum of this Court in Brij Raj's case : [1951]2SCR145 , comes into play and one has to look to the provisions of law contained in the four corners of any State Rent Act to find out whether a tenant can be evicted or not. The theory of double protection or additional protection, it seems to us, has been stretched too far and without a propel and due consideration of all its ramifications.

After referring to the aforesaid passage, the Supreme Court proceeded to state that though, under Clause 12 of the agreement of lease, the lessor was entitled to enter into possession forthwith without notice if the tenant had neglected to pay the rent for 2 months, such a clause could not be availed of after the Rent Act came into force which provided for the seeking of a remedy by the lessor in eviction under the provisions of the Rent Act and in such circumstances, the tenant cannot rely upon Section 114 of the Transfer of Property Act and claim that he should be given an opportunity to pay the arrears of rent, if the requirement of Section 3(1) of the U.P. (Temporary) Control and Eviction Act, 1947 had been fulfilled. Similar is the situation in this case where the 1st respondent attempts to seek a double protection as it were one under Article 1717 of the French Code Civil and the other under the provisions of the Act. It has also earlier been pointed out how the 1st respondent is not entitled to any protection under the provisions of the Act as there is admittedly no consent in writing of the petitioner enabling the 1st respondent to sublease the premises in favour of the 2nd respondent. The other protection under Article 1717 of the French Code Civil also would not be available as with reference to the leases governed by the provisions of the Act, it would be only the provisions of that Act that would give protection to the landlord as well as the tenant and outside those provisions, it would not be open to them to seek any further or additional protection, as is now attempted to be claimed by the 1st respondent herein. It is also further significant to note that in the Act there is no provision which expressly saves such rights as may have accrued in favour of either the landlord or the tenant, as the case may be, under the provisions of the French Code Civil. That would mean that even assuming such rights were earlier available, on the coming into force of the provisions of the Act, the entitlement of a landlord to seek an order for eviction and the protection which can be afforded to a tenant have all to be considered only in the light of the provisions of the Act and not with reference to the general law or rights available thereunder. In this case, the lease was an oral one in 1973 as found earlier and unless the petitioner had consented to the subletting in writing, the Ist respondent cannot be heard to contend that no order for eviction could be passed against him on the ground of subletting. Besides, if a right under the Articles of the French Code Civil or general law, as the case may be, to sublease is recognised and given effect to, then Section 10(2)(ii)(a) of the Act would be rendered a dead letter, for, in every case where there is a subletting without the consent in writing of the landlord, it could be justified on the basis of rights in that regard either under the provisions of the Transfer of Property Act or under the Articles of the French Code Civil. Such could not have been the intention of the legislature at all. Here, the Act had come into force on 1-8-1969 and the tenancy which commenced in 1973 was governed by the provisions of the Act. Under those circumstances, only a written consent of the petitioner could validate the sublease by the first respondent in favour of the 2nd respondent. Admittedly, in this case, there is no such written consent by the petitioner for the sublease by the 1st respondent in favour of the 2nd respondent and the admitted sublease would be one without the consent in writing of the petitioner falling squarely under Section 10(2)(ii)(a) of the Act. Under those circumstances, the petitioner will be undoubtedly entitled to an order for eviction and the appellate authority was in error in having declined to grant the petitioner such an order. Consequently, the order of the appellate authority is set aside and that of the Rent Controller is restored and the civil revision petition is allowed with costs through out.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //