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S. Balasubramaniam Vs. Gulab Jan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1981)1MLJ354
AppellantS. Balasubramaniam
RespondentGulab Jan
Cases ReferredRamanatha Iyer v. Bathul Bai
Excerpt:
.....absence of contest by the main tenant for valid reasons and in the absence of collusion or frand between the landlord and the main tenant, it is not permissible for the sub-tenant to stultify the proceedings for eviction by the landlord by putting forth any independent contest of this own......of 1960), hereinafter referred to as 'the act' is the petitioner. the respondent herein is the sub-tenant. the landlord filed a petition, h. r. c. no. 115 of 1976 on the file of the rent controller of nilgiris, gudalur, for eviction under section 10(2)(i) for wilful default, section 10(2)(ii)(a) for sub-letting and section 14(1)(b) for demolition and reconstruction under the act, against five respondents of whom the respondent herein was the fifth. respondents 1 to 4 before the rent controller were the legal representatives of one ahamed hussain, who was the original tenant of the premises in question. respondents 1 to 4 before the rent controller, the legal representatives of the original tenant and who assumed the character of tenants within the meaning of the act, remained ex parte.....
Judgment:

S. Nainar Sundaram, J.

1. In this revision, the landlord within the meaning of the Tamil Nadu Buildings (Lease and Rent Control) Act, (XVIII of 1960), hereinafter referred to as 'the Act' is the petitioner. The respondent herein is the sub-tenant. The landlord filed a petition, H. R. C. No. 115 of 1976 on the file of the Rent Controller of Nilgiris, Gudalur, for eviction under Section 10(2)(i) for wilful default, Section 10(2)(ii)(a) for sub-letting and Section 14(1)(b) for demolition and reconstruction under the Act, against five respondents of whom the respondent herein was the fifth. Respondents 1 to 4 before the Rent Controller were the legal representatives of one Ahamed Hussain, who was the original tenant of the premises in question. Respondents 1 to 4 before the Rent Controller, the legal representatives of the original tenant and who assumed the character of tenants within the meaning of the Act, remained ex parte and did not contest the petition for eviction. The sub-tenant, the respondent herein, alone contested. According to him, the sub letting was done with the consent of the previous landlord Palaniswami Pandaram, who has gifted the property to the present landlord on 25th September, 1972; he has been paying the rents to the previous landlord Palaniswami Pandaram because he had no notice of the transfer of ownership; and the previous landlord earlier obtained an order of eviction on the same ground of demolition and reconstruction and since there was failure to demolish within the time given by the Court, even after obtaining the possession of the premises, restitution has been obtained and the proceedings are barred under Section 19 of the Act. The contest of the sub-tenant was considered by the Rent Controller. He held that there was no wilful default and that the sub-tenancy was with the consent of the previous landlord. However, the Rent Controller upheld the case of the landlord on the question of his requirement of the premises for demolition and reconstruction and ordered eviction. The bar under Section 19 of the Act pleaded by the sub-tenant was not countenanced by the Rent Controller. The chief tenants, respondents 1 to 4, before the Rent Controller, did not take up the matter in appeal The sub-tenant alone preferred an appeal, C. M. A. No. 38 of 1977 before the Subordinate Judge of the Nilgiris at Ootacamund. The Appellate Authority reversed the finding of the Rent Controller on the question of the landlord's requirement of the premises for demolition and reconstruction and held that there was lack of bona fides on the part of the landlord and allowed the appeal, dismissing the petition for eviction. The present revision is directed against the judgment and decree of the Appellate Authority.

2. Mr. N. Sivamani, learned Counsel for the petitioner, would primarily urge that the chief tenants having not contested the petition for eviction, the sub-tenant has no locus standi to contest the petition for eviction and thwart the move by the landlord to obtain possession. The learned Counsel would further submit that even otherwise, the bar under Section 19 of the Act would not apply because the present petition for eviction has the backing of the new cause of action and the tests to be applied under Section 14(1)(b) of the Act get amply satisfied and hence the landlord is entitled to the order of eviction.

3. The primary question to be decided is as to whether the respondent herein, the subtenant, has got any status under the Act so as to put forth any individual contest and defeat the proceedings for eviction by the landlord.

4. A similar question under the Madras Buildings (Lease and Rent Control) Act (XV of 1946) arose for consideration by a Division Bench of this Court consisting of Govinda Menon and Krishnaswami Nayudu JJ. in Devaraja Bhatt v. V.S. Raja : AIR1953Mad356 and Govinda Menon, J, speaking for the Division Bench, observed that:

Under the Madras Buildings (Lease and Rent Control) Act a sub-tenant as such is not recognised and if a landlord brings a suit in ejectment a sub-tenant let into possession cannot raise any question and submit that be has a status under the Act which should be safeguarded by its provisions.

5 Construing the provisions of the Madras Buildings (Lease and Rent Control) Act (XXV of 1949), Rajamannar, C. J. and Venkatarama Ayyar, J., expressed the view that the right given by Section 7(1) of the said Act in expressly given to the tenant and the definition of tenant in Section 2(4) of the Act does not include a person placed in occupation of a building by its tenant; and Section 7(1) cannot on a proper construction apply to a sub-tenant and confer rights en him and he cannot get the benefit indirectly on the ground that he claims under the tenant. They also considered the effect of the Explanation added by Act VIII of 1951 which run as follows:

A tenant who sub-lets shall be deemed to be landlord within the meaning of this Act in relation to the sub-tenant.

They held that the effect of the Explanation is certainly not to enable a sub-tenant to raise an objection to being evicted by the landlord either under the provisions of the Rent Control Act or otherwise, as for example, in execution of a decree for possession; and the expression 'tenant' in Section 7(1) would not include a sub-tenant in relation to the original landlord. This Bench referred to the dictum of the earlier Bench in Devaraj Bhatt v. V.S. Raja : AIR1953Mad356 .

6. The question came up for a comprehensive consideration by the Supreme Court in Rupchand v. Raghuvanshi : [1964]7SCR760 and the facts of that case may be shortly stated as follows:

7. A landlord brought a suit against his lessee for ejectment after serving a valid notice to quit but without impleading the sub-lessee as defendant. The lessee did not contest the suit in pursuance of his agreement with the plaintiff landlord and an ex parte decree was passed. The sub-lessee thereupon brought a suit against the landlord and the lessee for a declaration that he was not bound by the decree which had been obtained by collusion between the defendants in order to injure the plaintiff and to evict him from the premises without a decree being passed against him. The suit was dismissed on the ground that the plaintiff failed to establish collusion.

8. The Supreme Court held that the suit was rightly dismissed and the mere fact that the sub-lessee was not impleaded or that the lessee did not actually contest the suit did not render the decree passed in the suit as collusive especially when it was not suggested by the sub-lessee that the lessor had even a plausible defence to the claim for ejectment. Collusion in judicial proceedings was defined by the Supreme Court as a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. It was further held that where the landlord institutes a suit against the lessees for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sublessees as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate; the decree in such a suit would bind the sub-lessee; this may not act harshly on the sub-lessee, but this is a position well understood by him when he took the sub-lease, the law allowed this and so the admission cannot be said to be an improper act; the mere fact that the defendant agrees with the plaintiff that if a suit is brought he would not defend it, would not necessarily prove collusion; and it is only if this agreement is done improperly in the sense that a dishonest purpose is intended to be achieved that they can be said to have colluded.

9. The general law permits the lessor to obtain a decree for possession against the lessee, which decree cannot be stultified by the sub-lessee on the simple ground that he Was not made a party to the proceedings for the reason that the sub-lessee has no superior right to remain in possession over that of the lessor to obtain possession. The right of the sub-lessee is a derivative one and it is defeasible and depends on the right of the lessee, through whom he obtains and is in possession. If the lessor could rightly obtain possession from the lessee, the sub-lessee could not stand in the way irrespective of the fact whether he was made a party or not to the proceedings for possession by the lessor. These principles cannot be lost sight of. It may not be necessary to cite multiple judicial precedents in reiteration of this well accepted position in law.

10. In the instant case, no material is placed before the Court to indicate that the main lease was for any particular term. On the other hand, the plea is that the main lease itself is only oral and is from month to month. In such a contingency, the main tenant is only entitled to the protection under the Act namely, the statutory right to continue in possession subject to the provisions of the statute. If the landlord makes out a case for eviction under the Act against the main tenant, the sub-tenant cannot have any voice in such a contingency and has to abide by the decision in the action taken by the landlord against the main tenant. The sub-tenant cannot put forth any grievance since the Act confers upon him no protection whatsoever and his right to be in possession is, in the very nature of things, very nebulous and is a defeasible right. In the present case, the sub-tenant has not put forth and substantiated any plea of collusion between the landlord and the main tenants respondents 1 to 4 before the Rent Controller. Section 26 of the Act is only an enabling provision and it does not affect the well established principle that a sub-tenant has no independent right of his own to be protected under the Act and in the absence of contest by the main tenant for valid reasons and in the absence of collusion or frand between the landlord and the main tenant, it is not permissible for the sub-tenant to stultify the proceedings for eviction by the landlord by putting forth any independent contest of this own. if the position is understood in the above light, I am unable to countenance the stand of the sub-tenant, the respondent herein, against the proceedings for eviction by the landlord. As observed earlier, there is no proof of collusion or fraud by the landlord and the main tenants Hence, it mast be presumed that the main tenants found no justifiable and valid excuse or ground to contest the petition for eviction by the landlord and in the said circumstances, it is not within the competency of the sub-tenant, the respondent herein, to put forth a contest and nullify the proceedings for eviction by the landlord.

11. Even on merits, I am of the view that the Appellate Authority acted with impropriety and irregularity when it negatived the case of the landlord, I find that the bar under Section 19 of the Act pleaded by the subtenant, the respondent herein, has not been dealt with by the appellate authority. The earlier proceedings for eviction on the ground of demolition and reconstruction at the instance of the previous landlord terminated in 1972. Exhibit A-1 is a notice dated 24th August, 1974, issued by the Executive Officer, Gudalur Town Panchayat. Gudalur, Nilgiris, to the present landlord and the body of the notice runs as follows:

The contingency is a new one and would definitely amount to change in circumstances. In M.K. Abdul Majid Sahib v. T. Mohammed Ismail C. R. P. No. 665 1976, dated 18th August, 1976, Suryamurthi, J., dealt with a similar situation. There, the previous proceedings, terminated in March, 1973 and the notice by the Municipality to the owners of the building directing them to demolish the building came to be issued on 15th November, 1973. The learned Judge held that this cause of action, which was not available to the landlords when the previous proceedings were initiated, had arisen after the previous proceedings were terminated and the position based on the new cause of action was maintainable.

12. Exhibit A-1 notice speaks for itself and it shows that the building in question is in a dangerous condition; the walls thereof have developed cracks; the cement plasters have worn out and the building stands the risk of falling down endangering the life of pedestrians passing through. The marking of this document has not been objected to and the genuineness of the document does not appear to have been questioned at all by the sub-tenant, even assuming that he has got the competency to contest the position for eviction. Yet, the Appellate Authority seems to feel that the landlord ought to lave placed further proof as to the condition of the building.

13. Another grievance put forth by the sub-tenant, the respondent herein, is that no sanction has been obtained for demolition and reconstruction. In the face of Exhibit A-1, it will be redundant to insist upon the obtaining of sanction for demolition for reconstruction. It cannot be laid down as a general rule that in all cases of demolition and reconstruction, prior sanction should have been obtained. The existing condition of the building being as borne out by Exhibit A-1, it will amply justify the action of the landlord and substantiate his bona fides. As pointed out by Ramanujam, J , in Ramanatha Iyer v. Bathul Bai (1971) 2 M. L. J. 383 : : (1971)2MLJ383 , the Act nowhere provides that a petition for demolition and reconstruction should be made only after getting the required sanction from the authorities concerned.

14. The capacity and means of the landlord to carry out this work of demolition and reconstruction do not appear to have been challenged in the present proceedings. Want of sanctioned plan or lack of preparations for the work of demolition and, reconstruction by itself cannot negative the bona fides of the landlord. Each case will have to be decided on its own facts. Under certain circumstances, it is futile to expect the landlord to make the preparations for demolition and reconstruction on the fond rope of succeeding in his proceedings for eviction. To insist upon such a factor as a sine qua non for initiation of proceedings for eviction on the ground of demolition and reconstruction would drive the landlord to incur expenditure which may turn out to be futile depending upon the ultimate result in the proceedings for eviction. In my view. Exhibit A-1 clinches the issue and lends ample support to the case of the landlord for demolition and reconstruction.

15. For all the above reasons, I am obliged to interfere in revision and accordingly, the revision is allowed, the judgment and decree of the Appellate Authority are set aside and the petition, H. R. C. No. 115 of 1976 on the file of the Rent Controller, Nilgiris, Gudalur, for eviction is ordered directing the respondent therein (including the respondent in this revision) to deliver possession of the premises in question within six months from today.

16. The landlord, the petitioner herein, shall commence the work of demolition of the building in question not later than one month and shall complete the work of demolition before the expiry of three months from the date he recovers possession of the said building.

17. There will be no order as to costs.


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