@JUDGMENTTAG-ORDER
U.L. Bhat, J.@mdashLandlord of the building involved in this case is the revision petitioner. The learned Rent Controller found that the rent was in arrears but that ground for eviction u/s 11(4) (i) of the Kerala Buildings (Lease and Rent Control) Act, (1965 for short, the Act) was not established. However, he dismissed the eviction petition on the ground that the landlord claiming to be the manager of the joint family has no status to sue inasmuch as there was severance in status of the family.
2. In appeal the Appellate Authority found that the revision petitioner is a landlord as defined in Section 2(3) of the Act and could legitimately maintain the eviction petition There-upon the learned Appellate Authority ordered eviction under Sections 11 (2) (b) and 11 (4) (i) of the Act. The District Judge as the statutory revisional authority u/s 20 of the Act set aside the order of eviction u/s 11(4) (i) of the Act. Hence this revision by the landlord.
3. The disputed building belonged to the erstwhile joint family of which the revision petitioner was the manager. In a suit filed by a member of the family, a preliminary decree for partition has been passed. Nevertheless, since the revision petitioner has been collecting the rent of the building from the tenant and has been found to be entitled to collect the rent in previous proceedings, has been held to be entitled to maintain the petition by the learned Appellate Authority and the revisional authority and this finding is not challenged now by the respondent.
4. u/s 11 [4] [i] of the Act a landlord could seek an order of eviction against the tenant if the tenant after the commencement of the Act, without the consent of the landlord, transfers his right under the lease or sub-lets the entire building or any portion thereof if the lease does not confer on him any right to do so: provided that an application under this clause shall not be made for the first time in respect of one and the same tenancy unless the landlord has sent a registered notice to the tenant intimating the contravention of the said condition of the lease and the tenant has failed to terminate the transfer of the sub-lease, as the case may be, within thirty days of the receipt of the notice or the refusel thereof. In the partition suit in the family O. S. No. 29/50 Advocate Sri Chandran was appointed Receiver. Admittedly it was the Receiver who let out the building to one Valliyammal the mother of the 7th respondent herein [first respondent before the Rent Controller]. Admittedly the lease was some time prior to 1958, though the date of the lease was not pleaded by either side. Admittedly Valliyamma sub let the building to Ramamoorthy (1st respondent herein) and Narayanan, respondents 2 and 3 before the Rent Controller. Narayanan is dead. Respondents 2 to 6 are his legal representatives. The authorities below have uniformly held that the sub-lease was granted to Valliyamma on 15-8-1958. From the evidence of the landlord examined as P. W. 1 it is seen that the Receiver was discharged in 1970.
5. It is the contention of the landlord that the lease in favour of Valliyamma did not confer on her any right to sub-let the building and that the Receiver had not consented the sub-letting and therefore the sub-letting in the case is an objectionable one as contemplated u/s 11 (4) (i) of the Act. The respondents denied these contentions and contend that the sub-letting was done with the consent of the Receiver. There was no specific contention in the counter statements filed that the lease did confer on Valliyamma the right to sub-let the building.
6. The landlord was examined as P. W. 1. One of the sub-tenants was examined as R. W. I. The other sub-tenant''s wife That hayamma was examined as R. W. 2. Ext. A2 is the notice sent on behalf of the landlord and Exts A3 and A4 are the replies. The learned Rent Controller held that the evidence of R. Ws 1 and 2 was sufficient to establish that the Receiver consented to the sub-lease and the denial by P. W. 1 could not be accepted. The learned Appellate Authority held that the burden of proving consent of the Receiver was on the respondents and they failed to prove discharge of burden. The revisional authority, on the other hand took the view that the burden of proving the absence of consent and absence of right under the lease to grant the sub-lease was on the landlord. The revisional authority relied on the evidence of R. Ws. 1 and 2 and held that the evidence was wrongfully ignored by the learned Appellate Authority. The revisional authority also drew an adverse inference against the landlord for set producing or causing production of the lease deed executed by Valliyammal in favour of the Receiver or the other records is the civil court.
7. Learned counsel for the revision petitioner would contend that the view taken by the revisional authority in regard to the burden of proof is erroneous and the authority exceeded its jurisdiction in interfering with the finding of fact recorded by the Appellate Authority.
8. The Act was preceded by The Kerala Buildings (Lease and Rent Control) Act, 1959. The preamble of the Act 1959 stated that it was expedient to regulate the letting of buildings and to control the rents of such buildings and to prevent unreasonable eviction of tenants there from. The Act of 1959 lapsed after the expiry of six years. Provisions of the Act of 1959 were re-enacted in the Act of 1965. If the Act is applicable to a building, tenant of the building can be evicted only under the provision of Section 11 of the Act. Sub-section (1) of Section 11 provides that notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of the Act. Sub-section (2), (3), (4), (7), (8) of Section 11 prescribe the grounds on which eviction of the tenants can be sought. There is no other provision on the Act enabling eviction of tenants.
9. A landlord can evict a tenant from a building [where the Act applies] only if one or the other of the grounds incorporated in Section 11 of the Act exist. This is evident from Sub-section [1] of Section 11 of the Act. Only when the Rent Controller is satisfied about the existence of one or the other of the grounds, can he order eviction. Sub-section [10] of Section 11 says that the Rent Control Court shall, if it is satisfied that the claim of the landlord under sub-sections [3] [4], [7] or sub-section [8] is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Rent Control Court, and if the Court is not so satisfied, it shall make an order rejecting the application. Since it is the landlord who approaches the Rent Control Court for an order of eviction, it is his duty to satisfy the Rent Control Court about the ground for eviction. Viewed in this light it is clear that it is for the landlord to allege and satisfy the Rent Controller regarding the ingredients contemplated in Section 11 (4) (i) of the Act.
10. Section 11[4] (i) of the Act reads thus:
A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building-(i) if the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub-lets the entire building or any portion thereof if the lease does not confer on him any right to do so:
Provided that an application under this clause shall not be made for the first time in respect of one and the same tenancy unless the landlord has sent a registered notice to the tenant intimating the contravention of the said condition of the tease and the tenant has failed to terminate the transfer or the sub-lease, as the case may be, within thirty days of the receipt of the notice or the refusal thereof.
11. The conditions contemplated by Section 11 (4) (i) are:
(a) the tenant after the commencement of the Act transferred his right under the lease or sub-let the entire building or any portion thereof, (b) this was done without the consent of the landlord, (c) the lease does not confer on the tenant any right to do so and (d) landlord has sent a registered notice to the tenant intimating the contravention of the said condition of the lease and the tenant has failed to terminate the transfer or the sub-lease, as the case my be, within thirty days of the receipt of the notice or the refusal thereof. Undoubtedly it is for the landlord to allege and satisfy the Rent Controller about these conditions.
12. It is not any and every kind of transfer or sub-lease which provides cause of action for the landlord to file an eviction petition. The sub-lease must be objectionable in the sense that it came into existence in the circumstances contemplated in the provision namely, without the consent of the landlord and the lease not containing a term conferring on the tenant the right to create the sub-lease. The absence of such an authority under the lease and the absence of consent render the sub-lease objectionable for the purpose of Section 11 of the Act. Such absence of term in the lease and consent must be alleged by the landlord. Viewed in this light, burden would be on the landlord to establish not only the sub-lease but also the objectionable nature of the sub-lease. Sukumaran, J in Leela v. Ali & Others. 1982 KLT 685 observed:
The setting of the statutory provision thus clearly indicates that it is for the landlord to establish not only that there was no objectionable sub-lease but also that despite a demand is that behalf the tenant has been contumacious in his conduct is not reversing, within the requisite time, his erroneous step in effecting a sub-lease.
(Emphasis supplied)
I am is respectful agreement with this view and hold that it is for the landlord to allege and satisfy the Rent Controller about the ingredients contemplated u/s 11 (4) (i) of the Act.
13. Learned counsel for the revision petitioner pointed out that it would be unreasonable to expect the landlord to prove the negative viz., absence of consent of the landlord or absence of a term in the lease conferring right on the tenant to create a sub-lease. At first blush the task of the landlord may appear to be formidable. However there can be no dispute that the Statute expects the landlord to allege the conditions contemplated therein and to satisfy the Rent Control Court as contemplated in sub-section (10). The burden therefore could only be on the landlord. But in a variety of circumstances it must he possible for the landlord to discharge the burden without difficulty. If the lease is documentary, it would be sufficient to produce and prove the document to show absence of right to grant sub-lease. If the tenant has a case that the consent is in writing, he must necessarily produce the same. If the lease is oral and the consent is alleged to be oral, the landlord could certainly swear on oath the absence of either and also adduce other available evidence. The tenant also may swear on oath regarding the existence of consent or a term in the lease, If both sides adduce evidence it is for the Rent Control Court to consider the evidence and surrounding circumstances and arrive at a finding. I do not think the law has treated the landlord unreasonably The question of consent and term of the lease are matters to be decided by the Rent Control Court in the light of the evidence and circumstances and probabilities emerging in the case.
14. Let us now turn to the evidence in the case. The lease in favour of Valliyamma was granted by Advocate Sri Chandran, Receiver appointed by the civil court. Sri Chandran is no more. There is no dispute that Advocate Sri Chandran was the son-in-law of Sri Janardhanan Nair, a Senior Advocate at Palghat, and was residing with him in Palghat. When the Receiver granted the lease, obviously he must have taken the permission of the court. It is difficult to accept that he would have granted oral lease. Necessarily he must have taken deeds from the tenants including Valliyamma. The landlord has not explained why he could not take steps to cause production of lease deed or the other connected records from the civil court. However this does not assume any importance since there is no case that the lease permits the tenant to grant sub-lease.
15. R. Ws. 1 and 2 have deposed that Valliyamma, two sub-tenants and R. W. 2 went to the residence of Sri Chandran to consult him about the proposed sub-leases and he granted consent to the sub-lease. This is the evidence given by R. Ws. 1 and 2. As against this evidence there is only the testimony of P. W. 1. It was repeatedly suggested to P. W. 1 that the Receiver had consented to the sub-lease. All that P. W. 1 could any was that he did not know about it or that the Receiver did not tell him about it. He also made it clear that he was not present in the residence at the time of the alleged sub-lease. According to R. Ws. 1 and 2 the sub-lease was granted in the presence of the Receiver at the latter''s residence. The evidence and circumstances were properly considered and appreciated by the learned Rent Controller to hold that the sub-lease was with the consent of the Receiver. The learned Appellate Authority brushed aside the evidence of R. Ws. 1 and 2 by stating that evidence was not sufficient. Learned Appellate Authority ignored the fact that the evidence of R. Ws. 1 and 2 stood practically unrebutted. The learned Appellate Authority also ignored a very significant circumstance which emerged from the evidence. All the authorities below accepted that the sub-lease was created on 15-8-1958. Thereafter the Receiver was in management of the Estate for a period of 12 years He was discharged only is 1970. Even thereafter five years elapsed before the revision petitioner issued/registered notice to the respondents alleging sub-lease. Even after the notice, the landlord kept quite for three years before filing the eviction petition. It is impossible to believe that the Advocate Receiver, an officer of the court, refrained from taking any action about the sub-lease for a period of nearly 12 years, after the sub-lease came into existence. It cannot be said that the Receiver was ignorant of the sub-lease. The Receiver''s residence as well as the disputed building are situated in the same town. The long silence of the Receiver coupled with the long silence of the revision petitioner is a strong corroborative circumstance in support of the contention of the tenant that there was consent of the Receiver. This circumstance was completely lost sight of by the learned Appellate Authority.
16. As indicated by the Allahabad High Court in Reoti Pershad v. Ajai Pal Singh & Others. 1979 (2) R.C.J. 11 if the sub-letting had been without the landlord''s consent and unlawful, it can be presumed that the landlord Would not have been slow in instituting the proceeding for eviction as soon as he came to know of it. In these circumstances I find that the revisional authority was justified in reversing the finding and decision of the Appellate Authority in regard to the applicability of Section 11(4) (i) of the Act.
17. Learned counsel for the revision petitioner contended that the sub-tenant need not be impleaded in eviction petition under the provisions of the Act, that any order passed against the tenant is binding on the subtenant even though he is not in the party array. Consequently, the argument proceeds, sub-tenant has no right to file an appeal or a revision petition. It is pointed out that against the order of eviction passed by the Appellate Authority, the tenant (7th respondent herein) did not file a revision before the District Judge. The revision was filed only by the sub-tenants viz., respondents 2 to 6 herein. They have no right, it is argued, to prefer a revision and therefore the judgment of the Appellate Authority must be deemed to I have become final in the eyes of law. Learned counsel relies on Sections 2 (6) and 21 of the Act.
18. Section 2(6) of the Act defines a tenant, inter alia, as a person by whom or on whose account rent is payable for a building and includes the heir or heirs of a deceased tenant and a person continuing in possession after the termination of the tenancy in his favour or a person placed in occupation of a building by its tenant. Section 21 of the Act states that any order for the eviction of a tenant passed under this Act shall be binding on all subtenants under such tenant, whether they were parties to the proceedings or not, provided that such order was not obtained by fraud or collusion. In cases where sub-letting is allowed under the original agreement of tenancy.
the sub-tenant shall be made a party to the proceedings if he had given notice of the sub-tenancy to the landlord Besides this provision in Section 21, the Act does not contain any other provision laying down rules for impleadment of parties. The rules framed u/s 32 of the Act also do not contain any provision in this regard.
19. Section 18 deals with appeals. Clause (b) of sub-section (i) of this Section states that any person aggrieved by an order passed by the Rent Control Court, may prefer an appeal in writing to the Appellate Authority having jurisdiction. Section 20 deals with revisions. This provision says that the revisional authority under this Section, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under the Act by the authority concerned for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit.
20. Thus it can be seen that any person aggrieved by an order of Rent Control Court may prefer an appeal to the Appellate Authority and any aggrieved party may prefer a revision before the revisional authority. The right to appeal is not specifically restricted to a person who is a party to the proceedings before the Rent Control Court. Therefore it cannot be accepted as a general proposition that only a party to the proceedings before the Rent Control Court can file an appeal. The particular provision in Section 18 is expressed in general terms and there is no warrant to give it a restricted meaning. If this is read in the light of Section 21, the matter would become clearer. An order of eviction of a tenant shall be binding on all sub-tenants whether they were parties to the proceedings or not, as long as such order was not obtained by fraud or collusion. A sub-tenant who wag not impleaded before the Rent Controller can certainly challenge the order as obtained by fraud or collusion. If such a sub-tenant, who was not a party to the proceedings before the Rent Control Court, files an appeal, the Appellate Authority is bound to consider his grievance to the extent permitted by law. If the sub-tenant is unsuccessful before the Appellate Authority, he would be certainly an aggrieved party entitled to file revision petition u/s 20 of the Act.
21. There may be difference between an order of eviction passed on the ground of an objectionable sub-letting and an order of eviction passed on other grounds. In the case of an objectionable sub-letting, the sub-tenant is a party thereto. When the landlord relies on an objectionable sub-letting as a ground for eviction, it is only proper that he impleads the sub-tenant also in the party array. If without impleading the sub-tenant on the party array an eviction order is passed on the ground of an objectionable sub-letting, certainly the sub-tenant will have a right of appeal as a person aggrieved. This is so even if the tenant does not contest the eviction petition or refrains from filing an appeal.
22. Learned counsel for the revision petitioner has placed reliance on certain decisions to show that generally speaking, a sub-lessee is bound by the decree for possession obtained by the lessor against the lessee. In
It may be assumed as a proposition of law that a sub-lessee would be bound by a decree for possession obtained by the lessor against the lessee, no matter whether the sub-lease was created before or after the suit, provided the eviction is based on a ground which determines the sub-lease also.
In Sailendra Nath v. Bijan Lal AIR (32)1945 Cal 283 the Calcutta High Court held that if the sub-lessee is not made defendant in a suit filed by the tenant, the judgment can bind only person, party privy to it. If the interest of the lessee is determined in such a way that the interest of the sub-lessee is extinguished along with it, a lawful judgment against the lessee which gives effect to the determination of the lessees'' rights must of necessity extinguish the subordinate rights of under-tenant. The sub-lessee is bound by the decree, if eviction is based on the ground which determines the under-lease also, unless he succeeds in showing that the judgment was vitiated by fraud or collusion and if the decree proceeds or a ground which does not by itself determine the sub-lease, the decree would not be binding on the sub-lessee and the latter cannot be evicted if he had acquired statutory right or protection which could avail against a lessor.
23. These general principles of civil law cannot be of general application to the circumstance created by social Statute, regardless of the provisions of the Statute or the circumstances of the case. Section 2(3) of the Act defines "landlord". The Explanation to the provision stales that a tenant who sub-lets shall be deemed to be a landlord within the meaning of the Act in relation to the sub tenant. This Explanation coupled with the provision of Section 21 of the Act would indicate that at least in regard to action for eviction based on objectionable sub-letting, the sub-lessee has a status to come on record and contest the case. If that be so, T see no reason why he cannot have resort to the superior authorities.
24. Learned counsel for the revision petitioner placed reliance on certain decisions of the Madras High Court under the parallel Madras Act and a decision of the Andhra Pradesh High Court under the parallel Andhra Act. In
The suit had been filed both against the tenant and the sub-tenant, being respectively the Association and the appellant. One decree had been passed by the trial Judge against both. The appellant had his own right to appeal from that decree. That right could not be affected by the Association''s decision not to file an appeal. There was one decree and, therefore, the appellant was entitled to have it set aside even though thereby the Association would also be freed from the decree. He could say that that decree was wrong and should be set aside as it was passed on the erroneous finding that the respondent had not acquiesced in the sub-letting by the Association to him. He could challenge that decree on any ground available. The lower appellate Court was, therefore, quite competent in the appeal by the appellant from the joint decree in ejectment against him and the Association, to give him whatever relief he was found entitled to, even though the Association had filed no appeal.''
In these circumstances I find that the sub-tenant had a right of appeal, and revision and could successfully challenge the eviction order which would prejudice him also.
I find no ground to interfere. The revision is dismissed but without costs.
