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B.R. Kapoor and Company Vs. A. Rathinam Chetty - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1983)2MLJ209
AppellantB.R. Kapoor and Company
RespondentA. Rathinam Chetty
Cases ReferredSouth Asia Industries v. Saroop Singh
Excerpt:
- - each one of those grounds from clauses (i) to (vii) clearly postulates some act of omission or omission attributable to the tenant. therefore in each of these clauses unless and until some positive act or some failure on the part of the tenant is attributable to the tenant himself, there cannot be a ground of eviction of course, it is true that there can be a tenancy or a subtenancy either expressly or impliedly. none the act of receiving rent may, at best, amount to acquiescence on the part of the tenant to sub-letting......to seek eviction of the present revision petitioner for the act of the previous tenant in subletting a portion to the asian enterprises. the language under section 10(2) of the act is to the effect that the tenant hat sub-let. in fact, in a stronger case in c. dharma-lingam v. a.s. sulochana c.r.p. no. 1066 of 1972 kailasam, j. as he then was, upheld such a view where the father having sub-let the premises died in 1967 and after the death of the father, eviction was sought against the son under section 10(2)(ii)(a) of the act on the ground of sub-letting. the court held that he was not liable to be evicted. the ratio of the said ruling fully applies to this case. therefore the order of the appellate authority is liable to be set aside.6. in meeting these submissions the learned.....
Judgment:

S. Mohan, J.

1. The admitted facts of the case are as follows. The respondent is the landlord of premises bearing Door No. 8, Smith's Road, Madras-2. He sought eviction of the revision petitioner under Section 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act) on the ground that the revision petitioner sub-let a portion of the petition premises in favour of Asian Enterprises who is not a party before me but who was arrayed as the second respondent in the petition for eviction.

2. The revision petitioner, in opposition to eviction, contended that he had every right to let out the premises in favour of the sublessee. In fact, even prior to the occupation of the premises by him, the sub-lessee was in possession of a portion of the petition premises. In other words, the original tenant M/s. Ravi Raj & Company had sub-let a portion to the Asian Enterprises and they are in occupation since July, 1977, itself while the revision petitioner became a tenant only in December, 1979. Therefore, the revision petitioner had not sub-let the portion in favour of the sub-lessee. Besides, the landlord himself agreed for the collection of the rent from the sub-lessee and asked the tenant to make over the payment to him. Hence the eviction petition has been filed with an oblique motive and therefore it was liable to be dismissed.

3. The sub-lessee, Asian Enterprises, contended that one M/s. Ravi Raj & Company was the tenant of the petition-premises orginally. In October, 1977 the said Ravi Raj & Company sub-leased a partition of the petition premises to Asian Enterprises Accordingly the sub-lessee was paying the rent to M/s Ravi Raj & Company from 1st November, 1977 to 28th February, 1979. In February, 1979 when M/s. Ravi Raj & Company vecated the portion it was occupying, the landlord leased out the said portion in favour of the revision petitioner with the knowledge of the existence of the sub-tenancy. Therefore, from the month of February, 1979, the sub-lessee was paying rent to the revision petitioner. In fact. M/s. Ravi Raj & Company sub-leased the portion with the written consent and knowledge of the landlord. In any event, the landlord was aware of the existence of the sub-tenancy in favour of Asian Enterprises from 1977 and therefore the eviction petition was liable to be dismissed.

4. The Rent Controller found that the act of sub-letting was not attributable to the present revision petitioner and therefore he dismissed the eviction petition, Aggrieved by this order, the landlord took up the matter in appeal. The Appellate Authority was of the view that in so far as there was no written consent from the landlord in favour of the revision petitioner to enable him to sub-lease, an order of eviction would follow. It was also of the view that the landlord came to know of the sub-tenancy only a few months prior to the filing of the eviction petition. Hence, the tenant has preferred this revision seeking to set aside the order of the appellate authority.

5. Mr. N.C. Raghavachari, learned Counsel for the revision petitioner would contend that the statutory protection conferred on a tenant under the Act is extended on certain conditions. That can be taken away only if positive acts of omissions or commissions could be attributed to the tenant. In so far as in this case admittedly the revision petitioner, the tenant has not sub-let, it is not open to the landlord to seek eviction of the present revision petitioner for the act of the previous tenant in subletting a portion to the Asian Enterprises. The language under Section 10(2) of the Act is to the effect that the tenant hat sub-let. In fact, in a stronger case in C. Dharma-lingam v. A.S. Sulochana C.R.P. No. 1066 of 1972 Kailasam, J. as he then was, upheld such a view where the father having sub-let the premises died in 1967 and after the death of the father, eviction was sought against the son under Section 10(2)(ii)(a) of the Act on the ground of sub-letting. The Court held that he was not liable to be evicted. The ratio of the said ruling fully applies to this case. Therefore the order of the appellate authority is liable to be set aside.

6. In meeting these submissions the learned Counsel for the respondent would urge, relying upon the decision in South Asia Industries v. Saroop Singh : [1965]3SCR829 , that even in a case of eviction against the sub-tenant where the tenant had vacated without leaving anybody behind, the Court ordered eviction against the sub-tenant. But, in this case, the original tenant has inducted a new tenant and therefore still eviction could be ordered oa the ground of sub-letting. Then again, though the language of Section 10(2)(ii)(a) of the Act is to the effect that the tenant has sub-let, in so far as admittedly the revision petitioner was receiving rent from the subtenant, Asian Enterprises, month after month, it would mean acquiescence of subtenancy. Such a sub-tenancy can therefore be express or implied. If it is a case of subtenancy arising by implication the only way to avoid eviction will be to plead and prove written consent from the landlord. There was neither such a plea, much less the proof.

7. I will now proceed to consider the merits and demerits of the above contentions. It is too late in the day to contend to the contrary that the Act causes serious inroad into the Transfer of Property Act. This is a special legislation altering the position of landlord and tenant as is obtainable under the Transfer of Property Act. Section 10 of the Act which forms the head of this Act (Act XVIII of 1960) says that 'a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Sections 14 to 16'. Therefore, there is a statutory bar against eviction even in execution of a decree. The word 'otherwise' is very comprehensive even if it is construed as 'ejusdem generis'. Where, therefore, eviction is sought against the tenant, it must be one, on the stated ground under Section 10 or Sections 14 to 16 of the Act. This requires me to analyse carefully the scope of Section 10. Sub-section (2) confers a right on the landlord to seek eviction on stated grounds. Each one of those grounds from Clauses (i) to (vii) clearly postulates some act of omission or omission attributable to the tenant. For example, in Clause (i) the tenant has not paid the rent In Clause (ii)(a) the tenant has transferred his right under the lease or sub-let; (b) used the building for a purpose other than that for which it was leased Clause (iii) contemplates the tenant committing or likely to commit acts of waste. Likewise, the succeeding clauses. Therefore in each of these clauses unless and until some positive act or some failure on the part of the tenant is attributable to the tenant himself, there cannot be a ground of eviction Of course, it is true that there can be a tenancy or a subtenancy either expressly or impliedly. It is not necessary that there should always be a written agreement or an oral agreement. By implication a sub-tenancy may arise. That is the position under the Transfer of Property Act. If, unfortunately, this Act (Act XVIII of 1960) which, as I observed above, causes a serious departure from the general position obtainable under the language for founding a ground of eviction in relation to sub-lease saying that the tenant has sub-let the entire building or any portion thereof (Italics supplied), it is no function of the Court to legislate. The Courts cannot add to the legislation since they are charged with the duty of merely interpreting the section as it stands Therefore, for my part, I am unable to accept the contention advanced on behalf of the respondent that the receipt of rent every month From the sub-tenant would take within it sub-letting which could be indirectly attributed to the present tenant although he himself has not sub-let. On the contrary, if the Act provides a penalty for the commission of an act by the tenant, what is it that is attributable to the present revision petitioner? None The act of receiving rent may, at best, amount to acquiescence on the part of the tenant to sub-letting. But, that acquiescence cannot be a ground under Section 10(2)(ii)(a) of the Act because of the positive language employed in the sub-section. I find great support for this view from the judgment of Kailasam, J., as he then was, rendered in C. Dharmalingam v. A.S. Sulochana C.R.P. No. 1066 of 1972. That was a case in which the sub-tenant was in the premises in 1952 itself which sub-tenancy had been created by the father of the existing tenant. After the death of the father, eviction was sought against the son on the ground of subletting. The learned Judge observed as under:

It is not in dispute that the tenant's father had sub-let the premises and after the petitioner became the tenant there was no sub-letting. It was submitted on behalf of the respondent that the word 'tenant' is wide enough to include the son of the tenant and if the sub-letting was by the tenant, the son who became the tenant after the death of the father would also be liable. I do not see any support for this contention. Though the word 'tenant' is defined as to include the surviving son who had been living with the tenant in the building at the time of his death, there is no provision for visiting the penalty for the sub-letting by the tenant on his son who become the tenant subsequently, for Section 10(2) makes only the tenant, if he has transferred his right or sub-let the building, subject to the penalty provided for in the section. As the present petitioner-tenant has nor sub-let the premises, the provision in Section 10(2)(ii)(a) cannot be availed of.

Therefore, the learned Counsel for the petitioner is justified in relying upon this ruling. Lastly, I will have to refer only to the decision in South Asia Industries v. Saroop Singh : [1965]3SCR829 , That was a case in which it was held where the tenant had left without leaving a successor, even then, eviction could follow against the sub-tenant. That case is of no assistance here because the cause of action was the original sub-letting which continued albeit the tenant vacated.

8. The appellate authority without bestowing proper attention to the language of Section 10(2)(ii)(a) of the Act has proceeded mostly upon the written consent of the landlord. May be that finding was warranted in view of the extreme contentions advanced by the parties. Nevertheless, only if it is held that the act of sub-letting could be attributable to the present revision petitioner, the protection is conferred against the subtenancy by producing written consent Therefore, the approach of the appellate authority cannot be called correct. Accordingly, this revision will stand allowed. There will be no order as to costs.


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