Kumaran vs Jose and Another

P.K. Balasubramanyan, J.—Respondent No. 1 in R.C.O.P. 17 of 1989 on the file of the Rent Control Court, Irinjalakuda is the Petitioner in this Revision. R.C.O.P. 17 of 1989 was one filed by the landlord of the building (a room in a building, but a building by definition) for eviction of the tenant under Sub-sections 2, 3 and 4(i) of Section 11 of the Kerala Buildings (Lease and Rent Control) Act. It is submitted that the claim u/s 11(3) of the Act on the ground of bona fide need was found against and does not survive for consideration here. Similarly though an order for eviction was passed u/s 11(2)(b) of the Act on the ground of arrears of rent, the same was got vacated by the tenant by resort to Section 11(2)(c) of the Act. Hence that claim also does not arise here. The claim that survives for decision in this Revision is the claim u/s 11(4)(i) of the Act on the ground that the tenant had sublet the building without being authorised to do so by the lease deed and without the consent of the landlord. The allegation was that the tenant, Respondent No. 1 before the Rent Control Court, has sublet a portion of the building after separating it with a wooden partition to Respondent No. 2 before the Rent Control Court. The tenant denied that contention and contended that Respondent No. 2 was only his nephew who had been permitted to keep some Allopathic medicine in a portion of the room and that too was done with the permission of the predecessor of the landlord who had subsequently gifted the building to the landlord. The Rent Control Court disallowed the claim for eviction u/s 11(4)(i) of the Act. The Appellate Authority reversed that decision and ordered eviction. The legality, regularity and propriety of the order passed by the Appellate Authority is questioned before us.

Before considering the question arising for decision, one aspect has to be adverted to. The Kerala Buildings (Lease and Rent Control) Act, 1959, Act 16 of 1959 was not extended to the Panchayat in which the petition schedule building is situate. The building was let out to the tenant on the terms of Ext. A-l rent deed on 3rd November 1978. In that deed there was an undertaking by the tenant that he would not sublet the building to anyone else during the subsistance of the tenancy. The Kerala Buildings (Lease and Rent Control) Act, Act 2 of 1965 came into force on 1st April 1,965 by virtue of the deeming provision contained in Section 1(4) of the Act. But, by virtue of Section 1(3) of the Act, the applicability of the Act depended on the inclusion of the concerned area in the areas mentioned in the Schedule to the Act or subsequently included in the Schedule, by a Notification in the Gazette. The petition schedule building is situate in Koratty Panchayat of Mukundapuram Taluk. The Act was extended to the Panchayat in question by Notification S.R.O. 176/86, dated 28th January 1986. Thus the Rent Control Act was extended to the Panchayat in question only on 28th January 1986.

Section 11(4)(i) of the Act furnishes a ground for eviction to the landlord of a building if the tenant, after the commencement of Act 2 of 1965, without the consent of the landlord, transfers his right under the lease or sublets the entire building or any portion thereof if the lease does not confer on him any right to do so. Before a landlord could get an order for eviction u/s 11(4)(i) of the Act, the landlord had to show that the subletting or transfer of his right by the tenant, had occurred after the commencement of the Act. In respect of areas to which the Kerala Buildings (Lease and Rent Control) Act, 1959 had stood extended before the enactment of Act 2 of 1963 the question had arisen whether a subletting by a tenant while Act 16 of 1959 was in force, without being authorised to do so by the lease and without the consent of the landlord, was liable to be evicted u/s 11(4)(i) of Act 2 of 1965. On an interpretation of Section 34 of Act 2 of 1965, it was held that by virtue of the proviso to Section 34(1) of the Act, a petition for eviction u/s 11(4)(i) of the Act 2 of 1965 could be maintained based on a subletting that had taken place after the commencement of the Kerala Buildings (Lease and Rent Control) Act, 1959. The matter ultimately reached the Supreme Court and the Supreme Court in H.V. Mathai Vs. The Subordinate Judge, Kottayam and Others, held that an application for eviction u/s 11(4)(i) of Act 2 of 1965 would be maintainable if the subletting had taken place while Act 16 of 1959 was in force and that Act had application to the area in question. It is therefore clear that the subletting need not necessarily be after the Kerala Buildings (Lease and Rent Control) Act, Act 2 of 1965 to deprive the tenant of the protection afforded by the Act when moved in that behalf by the landlord u/s 11(4)(i) of the Act. But the position in this case is somewhat different. The letting to the tenant itself was only in the year 1978, after the repeal of Act 16 of 1959 and after the coming into force of Act 1 of 1965. Also, Act 16 of 1959 was never extended to the area in question. Therefore there was also no corresponding provision in operation prior to the extension of Act 2 of 1965 to the area in question.

The question therefore is, what is the position in cases where Kerala Act 2 of 1965 is extended to the Panchayat or the area in question, only by a notification issued subsequent to the alleged subletting. On the wording of Section 11(4)(i) of the Act, it is clear that the subletting must be after the commencement of the Act. The question, with reference to a legislation in pari materia has been considered by the Supreme Court in Gurcharan Singh and Others Vs. Shri V.K. Kaushal, . There, u/s 13(2) of the East Punjab Urban Rent Restriction Act, a subletting after the commencement of that Act furnished a ground for eviction. The Supreme Court held, On a consideration of the relevant provisions that, since the relevant sub-section confines its scope to sub-leases granted after the commencement of the Act, even though such subletting continues to subsist, since the subletting took place prior to the date on which the Act was brought into operation in the area in question by a notification, the subletting would not furnish the landlord with a cause of action for eviction. This view was reiterated by the Supreme Court in Tirath Ram Gupta Vs. Gurubachan Singh and Another, . There also it was held that a subletting before the extension of the Act to the area in question would not entitle a landlord to claim an order for eviction on the ground of subletting under the East Punjab Urban Rent Restriction Act, 1949. Their Lordships relied on the decision earlier referred to.

In this case, the building was let out to the tenant on 3rd November 1978. The Kerala Act 2 of 1965 was extended to the area in question only by notification, dated 28th January 1986. Therefore, the landlord would be entitled to an order for eviction u/s 11(4)(i) of the Act only if he established that there was a subletting by the tenant without consent of the landlord and without being authorised by the lease, after 28th January 1986, the commencement of the Act in respect of the area in question. There is no clear pleading by the landlord as to when the alleged sub-tenancy was created by the tenant in favour of Respondent No. 2 before the Rent Control Court. There is also no clear case on that aspect on the side of the tenant. There is also no finding recorded by the Appellate Authority that any objectionable subletting had taken place after 28th January 1986. In such a situation, the order for eviction passed by the Appellate Authority on the ground of subletting u/s 11(4)(i) of the Act must be held to be illegal and improper. The basic finding of fact regarding the point of time at which the alleged subletting was made, with reference to the date of extension of the Act, has not been entered by the Appellate Authority. The order is therefore, liable to be interfered with in revision.

We find that the parties have not concentrated on this aspect either in their pleadings or in their evidence. There is also a case for the tenant that he had only permitted his nephew to use a portion of the room and he had retained control of the room as a whole and the nephew had no independent possession. We think that that aspect of the case also requires a proper examination. We find that the parties should be given a further opportunity to amend their pleadings and also to adduce evidence in support of their respective cases.

In that view, we set aside the decision of the Appellate Authority and the Rent Control Court rendered on the claim of the landlord u/s 11(4)(i) of the Act. We remand the Rent Control Petition to the Rent Control Court for a fresh trial and disposal in accordance with law and in the light of the observations contained above. The parties will be at liberty to amend their pleadings and to adduce further evidence. The parties will appear before the Rent Control Court on 9th April 2001.