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Mohammed Saleha Vs. Syed Nooruddin - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1982)1MLJ340
AppellantMohammed Saleha
RespondentSyed Nooruddin
Excerpt:
- - in the same paragraph, the appellate authority has observed--that in exhibit p-4 the tenant had clearly stated that himself and his brother alone are residing in the premises and that there is nothing to show that the appellant therein had sublet the premises on a monthly rent of rs. 52/1, pachaiyappa chetty street, mount road, madras bears good conduct and character and deserves encouragement. the landlord has not let in any evidence to prove that syed ahmed is a sub-tenant and not the brother of the main tenant, whereas the tenant has adduced satisfactory evidence to show that syed ahmed, whose real name is syed ahamadullah hussain, is the son of syed hussain, just like the tenant syed nooruddin, who is also the son of syed hussain residing at old no......alleged that the tenant had sublet a portion of the building on a monthly rent of rs. 125 to one syed ahmed, that he has also, erected construction and hence the tetnant should vacate the building. exhibit p-4 is the reply notice sent through lawyer, dated 17th july, 1978 'by the tenant stating that the landlord had sent similar lawyer's notice some years before also making similar allegation, that the tenant had sent a suitable reply meeting all the allegations, that the allegation of sub-lease of a portion of the building at rs. 125 is false and that the tenant himself and his brother alone are residing in the premises. thereafter only the eviction petition has been filed by the landlord making similar allegations as made in the lawyer notice, dated 4th july, 1978.4. in exhibit p-3.....
Judgment:

M. Fakkir Mohammed, J.

1. The revision petition has been filed by the respondent in H.R.A. No. 1470 of 1979, who is the landlord against the order, dated 22nd August, 1980, setting aside the order of eviction passed in H.R.C. No. 2120 of 1978 by the then X Court of Small Causes, Madras, dated 23rd June, 1979.

2. The landlord filed an eviction petition under Sections 10(2)(ii)(a) and 10(2)(iii) of the Tamil Nadu Act XVIII of 1960 alleging that the tenant has without the written consent and knowledge of the landlord and contrary to the terms of the lease demised the premises to a sub-tenant on a monthly rent of Rs. 125, even though the letting in favour of the respondent-main-tenant was on a monthly rent of Rs. 100 and for having effected unauthorised construction and additions without the knowledge and consent of the landlord. In H.R.C. No. 2120 of 1978. the alleged sub-tenant has not been impleaded by the landlord. The Rent Controller rejected the ground of acts of waste and ordered eviction on the ground of sub-letting and granted 3 months to vacate the premises. Thereupon, the tenant filed an appeal against the order of eviction of the Rent Controller. The appellate authority has found that the alleged sub-tenant is only the brother of the appellant and there was no sub-letting at all and, accordingly allowed the appeal and set aside the order of eviction passed by the Rent Controller.

3. Exhibit P-3 is the copy of the lawyer's notice, dated 4th July, 1978 sent by the landlord to the respondent-tenant, who is named Syed Nooruddin. In Exhibit P-3 it is alleged that the tenant had sublet a portion of the building on a monthly rent of Rs. 125 to one Syed Ahmed, that he has also, erected construction and hence the tetnant should vacate the building. Exhibit P-4 is the reply notice sent through lawyer, dated 17th July, 1978 'by the tenant stating that the landlord had sent similar lawyer's notice some years before also making similar allegation, that the tenant had sent a suitable reply meeting all the allegations, that the allegation of sub-lease of a portion of the building at Rs. 125 is false and that the tenant himself and his brother alone are residing in the premises. Thereafter only the eviction petition has been filed by the landlord making similar allegations as made in the lawyer notice, dated 4th July, 1978.

4. In Exhibit P-3 copy of the lawyer notice there is no reference to any notice received from the Corporation by the landlord, namely, Exhibit P-2. Exhibit P-2 is said to be a special notice said to have been served on the landlord on 31st March, 1978, wherein it is stated that the annual value of the building will be revised for the 1st half year, 1978-79 as Rs. 1,365. In paragraph 4 of the petition, there is no reference made to the Corporation Notice, namely, Exhibit P-2, though the sub-lease of a portion of the building to one Syed Ahmed on a monthly rent of Rs. 125 has been mentioned. In paragraph 7 of the petition reference is made to the lawyer's notice, dated 4th July, 1978 sent by the landlord to the respondent herein. The landlord had not sent any rejoinder to the reply notice sent by the tenant under Exhibit P-3 nor has the landlord made any reference in the eviction petition to the specific allegation made by the tenant in Exhibit P-4, that the landlord' had sent a similar lawyer notice through the very same lawyer of the landlord some years before, making the same allegation and that the landlord did not proceed further on the previous lawyer's notice. It was in Exhibit P-4, the tenant had pleaded that he has been residing along with his brother only. There is no averment in the eviction petition that Syed Ahmed, the alleged sub-tenant is not the brother of the tenant.

5. In order to substantiate the contention of sub-lease the landlord has produced Exhibit P-5 series;, demand notices and Exhibit P-6 series. Exhibits P-5 and P-6 series reveal that the Corporation had increased the annual rental value wihout stating that the rent fetched by the building is Rs. 125 per month. The learned appellate authority has observed in paragraph 7 of the order that a perusal of Exhibit P-5 and Exhibit P-6 series showed that there is nothing to show that the premises was sublet by the tenant to Syed Ahmed. The above conclusion of the appellate authority is not attacked. In the same paragraph, the appellate authority has observed--that in Exhibit P-4 the tenant had clearly stated that himself and his brother alone are residing in the premises and that there is nothing to show that the appellant therein had sublet the premises on a monthly rent of Rs. 125. In the later portion of the said paragraph the appellate authority has observed that R.W. 1, namely, tenant has deposed that Syed Ahmed is his brother, that in Exhibit R-1, the name of Syed Ahmed is found and that Exhibit R-2, dated 6th July, 1967 also showed the name of Syed Ahmed and that therefore there was no subletting by the tenant.

6. Exhibit R-1 is the copy of the Electoral Roll for the year 1976. In Exhibit R-1, the occupants of Door No.5211, in Pachaiappa Chetty Street are mentioned as Syed Assis-uddin, son of Syed Hussain, Noorulla Hus-sain, son of Syed Hussain, Asmathbi, wife of Syed Assisuddin, Mallikabi, wife of Noorulla Hussain, Basal Hussain, son of Syed Hussain, Syed Munavar Hussain, son of Syed Hussain and Syed Ahamadulla Hussain, son of Syed Hussain. In the schedule to the petition, the building has been described as Old Door No. 5211 and New Door No. 61, Pachaiappa Chetty Street, Mount Road, Madras-2. The tenant is described in paragraph 2 of the petition as son of late Syed Hussain Sahib, residing at No. 61 (Old No. 52/1), Pachaiappa] Chetty Street. Thus, Exhibit R-1 goes to prove that the tenant has been residing in the schedule building along with his mother, brothers and his wife at least from 1976 and prior to that and Syed Ahamadullah Hussain is his brother. The evidence of R.W. 1 is that Syed Ahmadullah Hussain was used to be called as Syed Ahmed. There is nothing strange in the evidence of R.W. 1 to say that his brother Ahmadullah Hussain is called as Syed Ahmed. In all houses, the members of the family used to call by short names, wherever their names are lengthy. Exhibit R-2 is also relied upon by the tenant and it is a conduct certificate by a Member of Parliament, Thiru C. Chittibabu to the effect that Syed Ahmadullah Hussain, son of Syed Hussain Saheb residing at No. 52/1, Pachaiyappa Chetty Street, Mount Road, Madras bears good conduct and character and deserves encouragement. The certificate was granted on 6th July, 1967. According to the evidence of R.W. 1, his brother Syed Ahamadullah Hussain, who is called as Syed Ahmed got Exhibit R-2 conduct certificate. The appellate authority has relied upon Exhibit R-2 also and observed that it goes to prove that Syed Ahmed is the brother of the tenant. Under Section 25 of the Tamil Nadu Act (XVITI of 1960), the High Court is not expected to interfere with the decision of the lower Court on a question, of fact, unless the decision of the lower Court is perverse.

7. The only argument of the learned Counsel for the revision petitioner is that the brother of the tenant could have been examined by the tenant to prove that he is not a sub-tenant. In Exhibit P-4 reply notice, the tenant has already pleaded that the landlord had sent a previous lawyer notice making same allegations to say that the tenant had sublet to one Syed Ahmed some years before, that he had refuted the said allegation by sending reply notice and that Syed Ahmed is none else than his brother. The landlord has not let in any evidence to prove that Syed Ahmed is a sub-tenant and not the brother of the main tenant, whereas the tenant has adduced satisfactory evidence to show that Syed Ahmed, whose real name is Syed Ahamadullah Hussain, is the son of Syed Hussain, just like the tenant Syed Nooruddin, who is also the son of Syed Hussain residing at old No. 52/1 Pachiappa Chetty Street. There is absolutely no merit whatsoever in the revision petition and it has to be dismissed with costs.

8. Under Section 26 of Act (XVIII of 1960), the landlord is expected to implead the subtenant also as a party in order to avoid any collusion between the landlord and the main tenant. If there was a sub-tenant with the written consent of the landlord and a collusive eviction petition was filed by the landlord and an eviction order is passed in the absence of the sub-tenant, it will cause undue hardship and injustice. In order to obviate such collusive proceedings only, such safeguard has been added in the amended Act. Because Syed Ahmed is the brother of the respondent' herein to the knowledge of the landlord, the latter has not impleaded Syed Ahmed also as a party as it will throw much light on the knowledge of the landlord that Syed Ahmed is also the son of Syed Hussain, the father of the tenant. The omission to implead Syed Ahmed shows the mala fides of the landlord. Therefore, also the eviction petition stands to be dismissed.

9. In the result, therefore, the revision petition is dismissed with costs and the order of the appellate authority is confirmed.


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