Skip to content


M.R.S. Sankara Mudaliar and ors. Vs. B.M. Haji Abubacker Maricar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 1203 of 1980
Judge
Reported inAIR1983Mad39
ActsTamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 10(2) and 26 ; Code of Civil Procedure (CPC),1908- Sections 2(11)
AppellantM.R.S. Sankara Mudaliar and ors.
RespondentB.M. Haji Abubacker Maricar
Appellant AdvocateM.N. Padmanabhan, ;A.S. Chakravarthi and ;K. Chandrasekharan, Advs.
Respondent AdvocateV. Shanmugham, ;Riaf Ali Khan and ;D.T. Sethumadhavan, Advs.
Cases ReferredGuruswami Nadar v. Natesa Nadar
Excerpt:
.....on the ground of wilful default and sub-letting. during the pendency of the petition for eviction the tenant vacated the premises and died later. the respondent continued the proceedings against the other parties. eviction was ordered on the ground that the tenant had committed wilful default and had also sublet the premises and further as the petitioners represents the interest of the deceased tenant it was unnecessary to implead his legal representatives. on appeal, the order was upheld. against that order, a revision petition was filled in the high court.; the question that arose for consideration was whether there could be any impediment in the way of proceedings being continued against the sub-tenants on the death of the tenant without impleading the legal representatives..........is the owner of premises bearing door no. 133, moore street, madras-1, and that one s.m. hussain alias hallaj (the first respondent in h.r.c. no. 3036 of 1976) occupied the entire first floor portion thereof excepting a room as a tenant on a monthly rental of rs. 215, exclusive of electricity charges. the further case of the respondent was that hussain alias hallaj retained only one room for his own use and occupation and sub-let the other portions to the petitioners and the fifth respondent in the, application for eviction and that the sub-lessees are in, occupation of the respective portions payingrent to hussain alias hallaj. it was also the case of the respondent that hussain alias hallaj failed and neglected to pay the monthly rent of rs. 215 from 1st january, 1974 to 31st july,.....
Judgment:
1. The respondents 2 to 4 in H.R.C. No. 3036 of 1976 before the XII Judge, Court of Small Causes, Madras, are the petitioners in this Civil Revision Petition, which arises out of an application filed by the respondent herein for an order of eviction against the petitioners and another. According to the case of the respondent, he is the owner of premises bearing Door No. 133, Moore Street, Madras-1, and that one S.M. Hussain alias Hallaj (the first respondent in H.R.C. No. 3036 of 1976) occupied the entire first floor portion thereof excepting a room as a tenant on a monthly rental of Rs. 215, exclusive of electricity charges. The further case of the respondent was that Hussain alias Hallaj retained only one room for his own use and occupation and sub-let the other portions to the petitioners and the fifth respondent in the, application for eviction and that the sub-lessees are in, occupation of the respective portions payingrent to Hussain alias Hallaj. It was also the case of the respondent that Hussain alias Hallaj failed and neglected to pay the monthly rent of Rs. 215 from 1st January, 1974 to 31st July, 1976 amounting to Rs. 6,691 and that a registered notice, dated 24th August, 1976 was issued to Hussain alias Hallaj and also the petitioners demanding the payment of arrears of rent and also vacant possession of the entire portion of the premises in their occupation. In response to this, according to the respondent, Hussain alias Hallaj sent a cheque for Rs. 500 only and promised to vacate the premises within three months thereafter, but did not do so. Thereupon, the respondent filed an application for eviction on the ground that Hussain alias Hallaj had wilfully committed default in the payment of rents even after the issue of notice dated 24th August, 1976 and that the petitioners and the fifth respondent in the, application for eviction are sub-tenants and they are also not entitled to remain in possession of the premises.

2. Hussain alias Hallaj, the first respondent before the Rent Controller contended that he was) the chief tenant of the premises and that no wilful default in the payment of rents had been committed by him. It was also his further plea that the rents had been regularly paid, but not given credit to and that the landlord had also filed a suit in O.S. No. 9033 of 1976, City Civil Court, Madras, and obtained a decree on 30th March, 1977. The inability to pay the rents was attributed to the irregularity in the payment of rents to him by the petitioners and the fifth respondent in the application for eviction. Ultimately, Hussain alias Hallaj prayed for four months' time to vacate the premises. The petitioners herein who figured as respondents 2 to 4 before the Rent Controller claimed that they are the direct tenants of the respondent herein and not the sub-tenants under Hussain alias Hallaj and that they were paying the rents regularly to the respondent for which no receipts had been issued and, therefore, there was no question of any wilful default in the payment of rents.

3. During the pendency of the application for eviction, Hussain alias Hallaj vacated the premises in his occupation some time in September, 1977 and also later died on 20th July, 1978, leaving behind him his sons and daughters. The respondent nevertheless continued the proceedings as against the petitioners and the fifth respondent in the application for evictions.

4. Before the, Rent Controller, the respondent examined P.W. 1 and marked Exhibits P-1 to P-20, while the petitioners relied upon Exhibits R-l to R-14 and examined R.Ws. 1 and 2 in support of their case. Before the Rent Controller, an objection was also raised by the petitioners that the, eviction proceedings cannot be continued as against them. On a consideration of the oral as well as the documentary evidence, the Rent Controller found that Hussain alias Hallaj had wilfully defaulted in the payment of rents and that the petitioners are only sub-tenaits of Hussain alias Hallaj and not the tenants directly under the respondent herein and, therefore, the petitioners are also liable to bej evicted. It was also further held that the petitioners represented the interest of Hussain alias Hallaj and, therefore, it was unnecessary to implead his legal representatives. On. those conclusions, an order for eviction was passed against the petitioners. Aggrieved by this, the petitioners preferred an appeal in H.R.A. No. 312 of 1979 before the Appellate Authority (II Judge, Court of Small Causes), Madras. The Appellate Authority, on a re-consideration of the entire oral as well as the documentary evidence, concurred with the conclusion of the Rent Controller that Hussain alias Hallaj had committed wilful default in the payment of rents for the period 1st January, 1974 to 31st July, 1976 and that the petitioners are only sub-tenants and not the tenants under the respondent. In this view, the order for eviction was upheild and the appeal preferred by the petitioners was dismissed. It is the correctness of this order that is challenged in this civil revision petition.

5. The main contention urged by the learned Counsel for the petitioners is that in the absence of the legal representatives of Hussain alias Hallaj as parties to the proceedings, the eviction application could not have been continued or proceeded against with the petitioners alone on record and, therefore, the eviction order passed by the authorities below is unsustainable. Reliance in this connection is also placed by the learned Counsel for the petitioners on the decision in Guruswami Nadar v. Natesa Nadar (1969) 2 M.L.J. 488, per contra, the learned Counsel for the respondent submits that the case of the petitioners throughout was that they were not sub-tenants, but direct tenants of the respondent and that case having been found against, the petitioners cannot have higher rights than as such sub-tenants and as persons in possession of portions of the premises, the petitioners represent the interest of Hussain alias Hallaj and, therefore, the continuation of the further proceedings against them before the authorities below is quite in order. In this connection, the learned Counsel for the respondent relied upon the decision of the Supreme Court in South Asia Industries v. Sarup Singh , and the decision in

Subra-mania Pttlai v. Masterly (1976) 1 M.L.J. 341 : 89 L.W. 291 : A.I.R. 1976 Mad. 303.

6. Before proceeding to consider these, rival contentions, it is necessary to advert to certain facts. The petitioners had been impleaded as persons in possession of portions of the premises as sub-lessees from Hussain alias Hallaj. The petitioners attempted to establish that they were the tenants of the respondent. Exhibit P-l, clearly establishes that Hussain alias Hallaj was the tenant in respect of the premises and the petitioners are not the tenants. Exhibit P-2 notice, dated 24th August, 1976 issued by the respondent to Hussain alias Hallaj clearly sets out that the petitioners are the sub-lessees and a copy of this notice has also been sent to the petitioners and served on them under Exhibits P-4 to P-6. The petitioners have, not in any manner demurred to the statement made in Exhibit P-2, that they are only sub-lessees of Hussain alias Hallaj. The petitioners, who were fully made aware of their status as sub-lessees have been contending that they are not sublessees inducted into possession by Hussain alias Hallaj, but tenants directly under the respondent. There is no proof of any payment of rent at any point of time by the petitioners to the respondent. The evidence discloses that the tenancy agreement had been entered into between the respondent and Hussain alias Hallaj only and no such relationship had been made out between the petitioners and the respondent. A consideration of the oral as well as the documentary evidence clearly indicates that the petitioners have not satisfactorily established that they are tenants of the respondent. The authorities below, after exhaustively considering the evidence have concurred in holding that there was wilful default in payment of rents and the petitioners are only sub-lessees and not tenants under the respondent in relation to the premises. Even before this Court, no attempt was made by the learned Counsel for the petitioners to challenge this finding of the authorities below.

7. Though the respondent has referred to Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960) (as amended by Act XXXIII of 1973) (hereinafter referred to as the Act) in the application for eviction, a fair reading thereof, particularly paragraphs 4 and 7, discloses that the respondent has filed his application for eviction on two grounds, namely, wilful default in the payment of rents and also sub-letting of the premises without the consent in writing of the respondent. Section 10(2)(ii)(a) of the Act has not been specifically referred to in the application for eviction, but the averments therein are such as to sustain an application for eviction even on the ground of sub-letting and the petitioners as well as the respondent have also proceeded to trial fully understanding the implications of the pleas raised by the respective parties and no prejudice has been caused to the petitioners in any manner because every opportunity has been given to the petitioners to establish that they are not sub-lessees as claimed by the respondent, but only tenants under the respondent as claimed by the petitioners themselves, in which attempt of course, the petitioners have failed. Under these circumstances, no serious prejudice will be caused to the petitioners if the application for eviction filed by the respondent herein is taken and treated to be one on the ground that Hussain alias Hallaj has sub-let the premises in the occupation of the petitioners without the consent in writing of the respondent. The very plea raised by the petitioners in the course of the proceedings before the authorities below would negative any consent in writing and in the absence of any direct evidence regarding the tenancy between the respondent and the petitioners, the finding of the authorities below that the petitioners are only sub-lessees from Hussain alias Hallaj in possession of the premises in question belonging to the respondent cannot be assailed and indeed, as stated earlier, was not challenged.

8. The question that now arises for consideration is, whether, the petitioners can be treated as the representative of deceased Hussain alias Hallaj for the purpose of the further prosecution of the proceedings for eviction at the instance, of the respondent. It is not in dispute that the provisions of the Act do not contain any definition of the term "legal representative". A consideration of the com ponent parts of Section 2(8) of the Act which defines a "tenant" indicates that apart from the surviving spouse, son or daughter of a deceased tenant, other categories of persons are, also contemplated as legal representatives. The wide definition of the expression "tenant"' as comprehending and including a legal representative of a deceased tenant not being the j spouse, son or, daughter, is not without significance and so far as the provisions of the Act are concerned, it is not only heritable relationship that matters, but even other considerations. The definition of the expression "legal representative" under Section 2(11), Code of Civil Procedure, which includes a person who intermeddles with the estate of the deceased person would also point out to the wider amplitude of the expression "legal representative". As earlier, stated, the finding of the, authorities below which is amply supported by the evidence on record is to the effect that the petitioners are only sub-lessees and not tenants and, therefore, it is unnecessary to go into the question whether the petitioners would be the legal representatives of the deceased tenants within the meaning of the Act. In addition, the definition also excludes from the scope of the expression "tenant" a person placed in occupation of a building by its tenant, and, therefore, in view of them challenging the finding of the authorities below, the petitioners cannot claim that they are tenants.

9. It is now necessary to notice Sections 26 and 27 of the Act. Under Section 26 of the Act, any order for eviction of a tenant passed under the provisions of the Act shall be binding on all sub-tenants, who were made parties in the application for eviction. Any person, who became a sub-tenant after the date of the application for eviction, shall be bound by the order of eviction and be evicted, as if he were a party to the proceedings provided that such order was not obtained by fraud or collusion. Even before an order for eviction could be passed against Hussain alias Hallaj, he had surrendered possession of that portion of the premises in his occupation in September, 1977, and' also later died on 20th July, 1978. This is not in dispute and virtually Hussain alias Hallaj has submitted to an order for eviction. No case of collusion or fraud between the respondent and Hussain alias Hallaj has been pleaded or proved by the petitioners. Section 27(1) of the Act provides that any application made, appeal preferred, or proceeding taken, under the provisions of the Act by or against any person, may, in the event of his death, be continued by or against his legal representatives. This shows that notwithstanding the death of a party to the proceedings already commenced, under the aforesaid provision of the Act, it may be continued by or against the legal representatives of the party. Section 27(2) of the Act, however provides that where any application, appeal or other proceeding could have been made, preferred or taken, under the provisions of the Act, by or against any person, such application, appeal or other proceeding may, in the event of his death, be made, preferred or taken by or against his legal representatives. Section 27(2) of the Act does not apply to the present case, as the application had already been made, by the respondent against Hussain alias Hallaj and four others and only during the pendency of that proceeding, Hussain alias Hallaj passed.

10. Under Sections 10(2)(i) and 10(2)(ii)(a) of the Act, a tenant is liable, to be evicted, if the tenant had committed wilful default or transferred his right under the lease, or sub-let the entire building or any portion thereof without the written consent of the landlord after 23rd October, 1945. In the present case, as pointed out already, the finding of the authorities below is that wilful default had been committed and the petitioners are sub-tenants and no consent of the respondent in writing has been either pleaded or established. The question is, whether the proceedings can be continued against the petitioners who have been found to be subtenants and an order for eviction passed against them, in the absence of the representation of the interest of Hussain alias Hallai by his legal representatives. Section 10 of the Act opens by imposing a bar on the eviction of a tenant and the subsequent provisions as well as Sections 14 to 16 of the Act, are really in the nature of exceptions, in the circumstances mentioned therein. A literal reading of Section 10(2)(i) and (ii) of the Act may appear to indicate that the person against whom an order for eviction can be made in cases falling under Sections 10(2)(i) and 10(2)(it)(a) of the Act would be the tenant who has not paid the rents or who has assigned his tenancy and no such order can be made against a person in whose favour the tenancy has been assigned. In other words, it may appear as if no order for eviction could ever be passed against persons in the position of the petitioners (sublessees) and the fact that Hussain alias Hallaj, ceased to be a party to the proceedings could not have, therefore, made any difference whatever. Section 10 of the Act sets out the circumstances in which the operative part of the sub-sections can be set in motion to secure an order for eviction. The use of the expression "the tenant" in Sections 10(2)(i) and 10(2)(ii) of the Act indicates that the tenant whose eviction is sought on, the ground of wilful non-payment of rent or sub-letting is the tenant of the landlord, who seeks eviction. That would mean that a landlord can recover possession of the premises, if his tenant has not paid rents or had assigned or sub-let without his consent in writing after 23rd October, 1945. To such a proceeding, if the subtenants are made parties, then Section 26 of the Act declares that the order passed therein would be binding upon the sub-tenants, who were so made parties. Even with reference to a sub-tenant who becomes so after the date of the application for eviction, he would be bound by the order of eviction and be evicted, as if he were a party to the proceedings, if the order of eviction was not obtained by fraud of collusion. Therefore, even Section 26 of the Act would support the construction that apart from "the tenant" as contemplated under Sections 10 (2)(i) and 10 (2)(iii)(a) of the Act, other persons could also be evicted on the strength of an order for eviction against the tenant which however is declared to be binding on persons, who are not tenants. On the finding of the authorities below that wilful default in payment of rents had been committed and the petitioners are also sub-lessees without the consent in writing of the landlord and the submission of Hussain alias Hallaj to the order of evictinn by surrendering possession in September, 1977, the respondent became entitled to recover possession of the premises under Sections 10(2)(i) and 10(2)(ii)(a) of the Act even against the petitioners and unless the language of the sections made it impossible for the landlord, effect must be given to the sections. From the language employed in Sections 10(2)(i) and 10(ii)(a) read with Section 26 of the Act, it cannot be said that the only person against whom an order for recovery of possession can be passed is the tenant assigning or sub-letting without She consent of the landlord. Further, it is rather difficult to hold that a right which had accrued to the landlord to recover possession should be taken away merely because the tenant, who assigns, has become extinct without leaving a successor. The cause of action, as it were for seeking an order for eviction, having arisen due to the undisputed wilful default and sub-letting of the, premises by liussain alias Hallaj without obtaining the consent of the respondent in writing, cannot be wiped out or erased on the death of the tenant. In the instant case, the sub-letting lias survived even the tenant in that the petitioners still continue to remain in possession of the premises, though not as tenants under the respondent. The situation that would inevitably result, if the contention of I he learned Counsel for the petitioners is accepted, may now be referred to. the finding of the authorities below that the petitioners are not tenants under the respondent, resort cannot be had by the respondent to secure an order for eviction against the petitioners. Likewise, even pursuant to a. submission to an order of eviction by the tenant Hussain alias Hallaj, the petitioners cannot be evicted as the legal representatives of the tenant have not been impleaded. The result would be that the unauthorised possession of the premises by the petitioners can be perpetuated and maintained without any payment of rent to the respondent and the respondent cannot initiate any proceeding for (lie eviction of the petitioners. Indeed, such a situation would be an anomalous one and would virtually make available to the, petitioners a total immunity from eviction. This would be all the more so in a case like this when the petitioners have been opposing an order for eviction on the ground that they are direct tenants. Under these circumstances, it is difficult to accept that no order for eviction could be passed against the petitioners, who have been found to be sub-tenants, in the absence of the impleadin of the legal representatives of the deceased tenant Hussain alias Hallaj.

11. In South Asia Industries v. Sarup Singh (1966) 1 S.C.J. 186 : (1965) 3 S.C.R. 529, Allen Berry and Company (Calcutta) Ltd., was the tenant in respect of certain premises and the lease was transferred to South Asia Industries Private Limited, and possession was also handed over. An application for eviction was filed under Section 14(1)(b) of the Delhi Rent Control Act, 1958, against Allen Berry and Company and also South Asia Industries Private Limited. During the pendency of the application, the tenant Allen Berry and Company went into liquidation and the company was struck off from the record of the proceedings. Thereafter, the application was heard and an order for eviction was passed against South Asia Industries Private Limited. An appeal was preferred therefrom which was dismissed and further proceedings before the Punjab High Court proved futile and the matter was thereupon carried on in further appeal before the Supreme Court. An argument was raised that no order for eviction could be made against a person in whose favour the tenany had been assigned. Taking into account the definition of the term "tenant" and the provisions of Section 14(1)(b) of the Delhi Rent Control Act, 1958, the Supreme Court held that an assignment of the premises by the tenant is a ground of eviction of both the assigning tenant and the assignee and in the event of an assignment without the consent in writing of the landlord, the Controller has jurisdiction to make an order for possession not only against the, 'assigning tenant, but also against the assignee. It was also further held that though the assigning tenant, a company, had gone into liquidation and ceased to be a party to the; proceedings, an order for eviction could still be made against the assignee. The principles laid down by the Supreme Court in the aforesaid decision would also apply to the facts of the present case. The sub letting by Hussain alias Hallaj, in the present case, in favour of the petitioners was without the consent in writing of the respondent and that would enable the respondent to recover possession of the premises from Hussain alias Hallaj as well as the petitioners against whom also the application for eviction had been properly filed. If such a right had accrued to the respondent, that cannot be taken away merely on account of the death of Hussain alias Hallaj. The object of the legislation would only be furthered and fulfilled by enabling a landlord to recover possession of the premises even as against the sub-tenants after the death of the main tenant on the footing that the sub-tenants represent (he interest of the main tenant. Even for the purpose of Section 2(ii), Code of Civil Procedure, it has been held that it is not always a legal requisite that, inevitably only the heirs, all of them or any of them, should figure as legal representatives and that the procedural law requiring representation will stand satisfied if there is substantial representation in the sense I hat all that could be done in defence is done by someone interested in the issue. Vide Subramania Pilled v. Masterly (1976) 1 M.L.J. 341 : A.I.R. 1976 Mad. 303. In the present case, the petitioners who are in possession of portions of the premises attempted to defeat the application for eviction filed by the cspondent on the ground that they are direct tenants of the respondent and in that attempt hey failed. In that context, the interest of Hussain alias Hallaj had been more than amply represented by the petitioners and since they had already been made parties to (he proceedings, there could not be any impediment in the way of the proceedings being continued even after the death of Hussain alias Hallaj. Having regard to these on siderations, on the facts of the present case, if seems to me that the decision in Guruswami Nadar v. Natesa Nadar (1969) 2 M.L.J. 488, relied upon by the learned Counsel for the petitioners cannot have any application. The authorities below were, Hiercfore, quite right in having ordered the eviction of the petitioner. The concurrent finding of the authorities below is amply supported by the evidence on record and does not deserve' to be interfered with in the exercise of the revisional jurisdiction under Section 25 of the Act. Consequently, the order of the authorities below is confirmed and the civil revision petition is dismissed with costs.


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