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201 paragraphs · 4,321 wordsR.S. Ramanathan, J.—The landlords are the revision petitioners herein. The revision petitioners/landlords filed a Petition in RCOP.No. 1303
of 1995 for eviction, on the ground of sub-let by the 1st respondent to the 2nd respondent, without the written consent of the revision
petitioners/landlords. The case of the revision petitioners/landlords was that, originally, the 2nd respondent was the tenant of the petition premises,
bearing Door No. 15, situate at Armenian Street, G.T., Chennai - 600 001 and in the year 1984 at the instance of 2nd respondent, the tenancy,
was transferred in favour of the first respondent and a lease deed, dated 06.09.1984 was also entered into between the 1st respondent and the
revision petitioners/landlords in the year 1984. The 1st respondent, without the consent of the revision petitioners/landlords, sub-let the premises to
the 2nd respondent and therefore, notices were issued on 09.01.1995 and 10.01.1995, calling upon the respondents to vacate the premises and
as the respondents failed to vacate the premises, a Petition for eviction was filed on the ground of sub-letting by the first respondent.
The respondents/tenants contested the Petition, by stating that there was no sub-letting and the 2nd respondent was the tenant of the premises
from the year 1969 till the year 1984. The 2nd respondent promoted a Company, which is the 1st respondent herein for record and accounting
purpose and though the tenancy was transferred in the name of the 1st respondent, the 2nd respondent continued to be in possession of the
premises along with the 1st respondent and that fact was also known to the revision petitioners/landlords and the 1st respondent is the subsidiary
Company of the 2nd respondent and both are managed by the same group of persons and there was no parting of possession by the 1st
respondent in favour of the 2nd respondent and both of them are doing business in the same premises and rent was also paid by the 2nd
respondent and that was accepted by the revision petitioners/landlords and therefore, there is no question of sub-letting by the 1st respondent.
The Learned Rent Controller allowed the Petition, holding that the 1st respondent sub-let the 2nd respondent and the same was proved by the
revision petitioners/landlords and ordered eviction. The respondents filed an Appeal in RCA.No. 1439 of 1996 against the eviction order and the
Rent Control Appellate Authority, without properly appreciating the contention of the revision petitioners/landlords and the evidence adduced by
the revision petitioners/landlords allowed the appeal filed by the respondents/tenants and set aside the order of the Learned Rent Controller.
Therefore, the revision petitioners/landlords filed CRP.No. 62 of 2002 and also filed an Application to receive the additional documents and this
Court set aside the order passed in RCA.No. 1439 of 1996 and remanded the matter to the Learned Appellate Authority to decide the matter
after affording an opportunity to the parties to adduce evidence, both oral and documentary. After remand, the parties adduced oral and
documentary evidence and the Learned Appellate Authority allowed the appeal and set aside the order of eviction holding that the revision
petitioners/landlords failed to prove the sub-letting by the 1st respondent and the 1st respondent and 2nd respondent are sister concerns and both
of them are in possession and the 2nd respondent is not in exclusive possession. Aggrieved by the same, this revision petition is filed.
It is submitted by the learned Senior Counsel, Mr. P. Wilson, appearing for the revision petitioners/landlords that the Lower Appellate Court,
without appreciating the Exs.P2, P4, P15, P17, P18, P22 and P24, erroneously held that the premises was in joint occupation of the both
respondents and the 1st respondent did not part with any part of the premises to the 2nd respondent and various exhibits would prove the 1st
respondent parted with possession of the lease hold premises in favour of the 2nd respondent and therefore, the Lower Appellate Court ought to
have confirmed the order of eviction passed by the Learned Rent Controller. The learned Senior Counsel further submitted that in Ex.P17, the 1st
respondent clearly admitted that the 1st respondent had vacated the premises and Exs.P15, P17, P18 and P22 would also prove that, after the
Lease Deed was entered into between the revision petitioners/landlords and the 1st respondent, on 06.09.1984, the 2nd respondent vacated the
premises and put the 1st respondent in possession of the property. Under Ex.P15 in the year 1994, the 2nd respondent came into the lease hold
premises, viz., the Building No. 15, Armenian Street and under Ex.P17, it is made clear that the 1st respondent shifted his business to Appu
Maistry Street from No. 15, Armenian Street Viz., the lease hold premises and this fact was not appreciated. The learned Senior Counsel further
submitted that, having regard to the admission of the 2nd respondent in Ex.P17 and the various Forms No. 18 filed by the 2nd respondent under
Exs.P17, P18 and 22, it was clearly proved by the revision petitioners/landlords that there was parting of possession of the 1st respondent in
favour of the 2nd respondent in the year 1994 and therefore, subletting was proved by the revision petitioners/landlords.
The learned Senior Counsel for the revision petitioners further submitted that the payment of rent by the 2nd respondent in the year 1994 would
not make out a case that there was a tenancy in favour of the 2nd respondent and that would not waive the right of the petitioners to file an Petition
for eviction, on the ground of sub-letting. The learned Senior Counsel further submitted that, though the 2nd respondent filed exhibits to prove that,
it continued to be in possession of the property even after 1984, namely, the Lease Deed executed between the revision petitioners and the 1st
respondent, no proof was adduced by the 1st respondent to prove that it continued to be in possession of the Lease hold premises after
11.05.1994 and that would also prove that the 1st respondent vacated the Office from the lease hold premises and allowed the entire premises to
be used by the 2nd respondent. The learned Senior Counsel also relied upon the judgments reported in Chandanmal Mootha Vs. Hajee Mohideen
and Others, , S. Jainmul Jain and Suraj Bal Vs. A.R. Nagarajan and M/s Premier Shipping Service 259, Thambu, Chetty Street, George Town,
Madras, 600 001 M.P.M. Hameed Ibrahim and one another Vs. V.S. Bagirathan and others, M. Gulam Rasool Vs. T.S. Govindarajan and 3
others, Gurdial Singh and Others Vs. Raj Kumar Aneja and Others, in support of his contentions.
Mr. M.S. Krishnan, the learned senior counsel appearing for the respondents/tenants contended that the Lower Appellate Court has rightly
allowed the appeal holding that there was no sub-letting and the 1st respondent did not part with possession in favour of the 2nd respondent and
both the respondents are sister concerns managed by the same group of persons and both of them are in possession of the property and unless, the
chief tenant parts with his possession in favour of another person, it will not amount to sub-letting. Moreover, the 2nd respondent has proved
through various exhibits that even after 1984 after the 1st respondent was inducted as a lessee, the 2nd respondent continued to be in possession
of the property along with the 1st respondent and hence, there was no subletting and therefore, the revision is liable to be dismissed. In support of
his contentions he relied upon the following judgments:
1) Sri. Raja Lakshmi Dyeing Works and Others Vs. Rangaswamy Chettiar,
2) Vallampati Kalavathi Vs. Haji Ismail,
3) Dev Kumar (Died) through LRs. Vs. Smt. Swaran Lata and others,
4) D. Sankaranarayannan v. Punjab National Bank
5) Gundalapalli Rangamannar Chetty Vs. Desu Rangiah and Others,
6 Jagdish Prasad Vs. Smt. Angoori Devi,
7) M. Thangiah Nadar and Sons Vs. R. Rajathi Ammal,
8) Madras Bangalore Transport Co. (West) Vs. Inder Singh and Others,
9) Dipak Banerjee Vs. Lilabati Chakraborty,
10) P. Senniappan and others Vs. Kannammal and 2 others,
Heard both sides.
In the above revision the following facts are admitted; Originally, the 2nd respondent was a lessee of the property. Under a registered Lease
Deed, dated 06.09.1984, the 1st respondent became the lessee of the property and the advance paid by the 2nd respondent was also refunded to
the 2nd respondent and that is evidenced by Ex.P4. Therefore, on and from 06.09.1984, the 1st respondent became the lessee of the lease hold
premises. It is the specific case of the revision petitioners that in the Year 1994, without the written consent of the revision petitioners, the 1st
respondent parted with his possession of the lease hold premises in favour of the 2nd respondent and therefore, he is liable to be evicted on the
ground of sub-letting.
The defense of the respondents was that, there was no question of sub-letting by the 1st respondent in favour of the 2nd respondent and even
after the 1st respondent was made a lessee, it was only for record and accounting purpose and the 2nd respondent continued to be in possession
of the property along with the 1st respondent and the 1st respondent company was promoted by the 2nd respondent and they are in the nature of
holding and subsidiary Companies managed by the same group of persons and they are in joint possession of the Lease hold premises and the 1st
respondent has not parted with his possession and therefore, there was no question of sub-letting.
It is a well settled that when a landlord pleads subletting by the main tenant, he has to prove that the main tenant had parted with the possession
of the property either the entire portion or a specific portion and the sub tenant was put in exclusive possession of that portion and in the absence
of any parting of exclusive possession and the main tenant retains the legal possession, there is no question of sub-letting. In the judgment reported
in Gundalapalli Rangamannar Chetty Vs. Desu Rangiah and Others, ) it has been held, that it cannot be a sub-letting unless the lessee parted with
legal possession. It is further held that mere fact that another person is allowed to use the premises, while lessee retains the legal possession, a
sublet cannot be created. To create a lease or sub lease, a right to exclusive possession and enjoyment of the property should be conferred on
another. The same principle is reiterated in the judgments reported in Dipak Banerjee Vs. Lilabati Chakraborty, Madras Bangalore Transport Co.
(West) Vs. Inder Singh and Others, P. Senniappan and others Vs. Kannammal and 2 others, Dev Kumar (Died) through LRs. Vs. Smt. Swaran
Lata and others, There is no dispute about the law as regards subletting.
Therefore, having regard to the evidence adduced in this case, we have to see whether the revision petitioners/landlords, have proved the case
of subletting.
As stated supra, originally, the 2nd respondent was the lessee and in the year 1984 at the instance of the 2nd respondent, the lease was
transferred in the name of 1st respondent as evidenced by Ex.P24. Therefore, the 1st respondent became tenant of the premises and even
assuming that the 2nd respondent did not vacate and hand over possession of the property in favour of the 1st respondent and continued to be in
possession of the property along with the 1st respondent from 1984, we will have to see whether there was any subletting by the 1st respondent in
the year 1994. Ex.P5 notice, dated 9.01.1995, given by the revision petitioners to the 2nd respondent states that the property was leased out to
the 1st respondent on 06.09.1984 and rent was paid by the 1st respondent from the month of September 1984. A cheque of Rs. 14,000/-
(Rupees Fourteen Thousand only) issued by the 2nd respondent as rent for a period of 4 months namely from September to December 1994 was
received and there was no relationship of tenant and landlords between the revision petitioners and the 2nd respondent and the 1st respondent
without the written consent or authorization, sublet to the 2nd respondent and therefore, directed the 2nd respondent to vacate and hand over the
vacant possession. The revision petitioners/landlords also sent a similar notice dated 10.01.1995 to the 1st respondent, stating that the 1st
respondent without the consent of the landlords, sublet the premises to the 2nd respondent and therefore, the 1st respondent is liable to be evicted.
In Ex.P7 is the reply sent by the 2nd respondent. In that reply notice, the 2nd respondent had stated that the 1st respondent is a sister company of
the 2nd respondent and both of them are carrying on business in the same premises and the said fact is also known to the revision
petitioners/landlords and for record and accounting purposes, cheques in respect of rents were being paid by the 1st respondent. It is further stated
as follows:-
In 1994 the said Precious Carrying Corporation Private Limited (1st respondent herein) owing to expansion of their business, required additional
office space and therefore, shifted their Office in or about May-July 1994. However, my client (2nd respondent herein) who has been in
possession and occupation of the premises from 1969 onwards continues to be in occupation thereof and have tendered rents for the months of
July and August which your clients (petitioner herein) have also accepted.
Therefore, it is clearly admitted by the 2nd respondent that during the month of May and July 1994, the 1st respondent shifted their Office and
the 2nd respondent continues to be in occupation thereon. This fact is also corroborated by Form - 18 filed by the 1st respondent, as evidenced
by Ex.P17. The 1st respondent filed Form -- 18/Ex.P17 and it is seen from Ex.P17, that the 1st respondent shifted the registered Office of the
Company from No. 15, Armenian Street namely the lease hold property to Appu Maistry Street, with effect from 11.05.1994. Ex.P15 is the
Form-18 filed by the 2nd respondent before the Registrar Office, wherein, they have admitted that the registered Office of the 2nd respondent
Company was changed from No. 116, Armenian Street, to No. 15, Armenian Street, with effect from 11.05.1994. These two Exs.P15 and P17
would falsify the case of the respondents that the 2nd respondent continues to be in possession of the property along with the 1st respondent prior
to 1994. It is also made clear from Ex.P18. Ex.P18 is the Form No. 18 filed by the 1st respondent before the Registrar of Companies informing
the change of Office from No. 102, Armenian Street to No. 15, Armenian Street, from 06.09.1984. Ex.P22 is the Form No. 18 filed by the 2nd
respondent, wherein, the 2nd respondent has stated that, on and from 06.09.1984, it changed its registered Office from No. 15, Armenian Street
to No. 116, Armenian Street. Therefore, under Ex.P22, the 2nd respondent shifted his place of business from No. 15, Armenian Street to No.
116, Armenian Street, from 06.09.1984, consequent to the Lease Deed entered into between the revision petitioners and the 1st respondent and
under Ex.P18, the 1st respondent shifted his place of business from No. 102, Armenian Street to No. 15, Armenian Street from 06.09.1984.
Further under Ex.P17, the 1st respondent shifted his business from No. 15, Armenian Street to Appu Maistry Street from 11.05.1994 and under
Ex.P15 the 2nd respondent shifted his business back to No. 15, Armenian Street the lease hold premises. Further the reply notice of the 2nd
respondent, viz., Ex.P7 would also clearly establish the fact that there was parting of possession of the 1st respondent from 11.05.1994 in favour
of the 2nd respondent and the 1st respondent was not doing business in the lease hold premises after 11.05.1994.
Further, no document was adduced by the 1st respondent to prove that the 1st respondent was doing business in the lease hold premises
namely No. 15, Armenian Street after 11.05.1994. On the other hand, documents were filed by the 1st respondent to prove that the 2nd
respondent was doing business from the year 1998 till 2000 and that would not help to prove the case of the respondents, as it is the case of the
revision petitioners that sub tenancy was created only in the year 1994 and that was evidenced by various Forms filed by both the respondents, as
stated above.
The contention of the learned senior counsel, Mr. M.S. Krishnan, for the respondents was that, both companies are sister concerns and they
are in the nature of holding and subsidiary Companies, cannot be accepted. The documents filed would only prove that both Companies are
separate legal entities and the fact that both the Companies are managed by the same group of persons, will not make them as holding and
subsidiary companies. Therefore, the clear case of parting with possession by the 1st respondent in favour of 2nd respondent was made out by the
revision petitioners and this was not appreciated by the Lower Appellate Court.
Further, the contention of the learned counsel for the respondents that rents were received from the 2nd respondent by the revision petitioners
and the 2nd respondent was doing business in the same premises, even after the 1st respondent entered into possession and therefore, that the
revision petitioners waived the right to question the subtenancy and they have accepted the factum of possession of the 2nd respondent and
therefore, it is not open to the revision petitioners to plead now, that the 1st respondent sublet the premises to the second respondent cannot be
accepted. In the judgment reported in (1996) 1 law weekly 510, (supra) the learned Judge has dealt with the above plea of waiver or
acquiescence and the learned Judge relied upon the judgment reported in Shalimar Tar Products Ltd. Vs. H.C. Sharma and Others, held that when
a statute prohibits sub tenancy of any portion of the tenanted premises, there is no question of waiver or acquiescence. It is noteworthy to
reproduce the judgment reported in Shalimar Tar Products Ltd. Vs. H.C. Sharma and Others, wherein, the Hon''ble Supreme Court has
elaborately discussed this aspect and held as follows:-
Though everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in
his individual capacity, but here was no case of waiver. Moreover, in view of the statutory requirement which is in public interest, there cannot be
any question of waiver of a right, dealing with the rights of the tenants or the landlord
(Emphasis supplied)
That case arose under the Delhi Rent Control Act, and sub-letting without consent of landlord was taken as a ground for eviction. Paragraphs 6, 7
and 13 of the said judgment can usefully be extracted.
That was the view of the Delhi High Court in Raja Ram Goyal Vs. Ashok Kumar. In Kartar Singh Vs. Shiv Vijay Kumar, the High Court of
Punjab and Haryana has also expressed similar view. In the case of M/s. Delhi Vanaspati Syndicate Vs. M/s Bhagwan Dass Faqir Chand,
Khanna, C.J. as he then was, of the Delhi High Court, observed at page 19. ""(para 11) of the report:"" Section 16 of the Act of 1958 holds the key
to the interpretation of provisions of clause (b) of sub section (1) of Section 14 of this Act as well as of clause (b) of sub-section (1) of Section 13
of the act of 1952. It deals with restrictions on sub-letting. Sub-section (1) of Section 16 makes sub-letting lawful, though it was without the
consent of the landlord, provided that the sub-letting has taken place before June 9, 1952 and the sub-tenant is in occupation of the premises at the
time when the Act of 1958 came into force. Sub-section (2) of Section 16 reiterates the provisions of clause (b) of sub-section (1) of Section 13
of the Act of 1952 and lays down that the subletting after June 9, 1952 without obtaining the consent in writing of the landlord shall not be deemed
to be lawful. It does not say that the requisite consent should be obtained before sub letting the premises and the consent obtained after sub-letting
will not ensure for the benefit of the tenant.
However, sub-section (3) of Section 16 prohibits sub-letting of the premises after commencement of Act of 1958 without the ''previous'' consent
in writing of the landlord. The use of word ''previous'' in this sub-section shows that where it was the intention of the legislature that the consent in
writing should be obtained before sub-letting, it said so specifically. The absence of the word ''previous'' in sub-section (2) shows that it was not
the intention of the legislature that the consent in writing could be obtained before sub-letting. Before the Act of 1952 a tenant could successfully
show acquiescence of the landlord in sub-letting to escape forfeiture of tenancy. Since the absence of consent in writing by a landlord for sub-
letting gave rise to unnecessary litigation between a landlord and a tenant, the Act of 1952 required the consent of the landlord in writing after its
commencement. The purpose seemed to be that the consent of the landlord evidenced by a writing would cut out litigation on this ground. After all,
a landlord ""could always agree to sub-letting either before or after sub-letting of the premises. For that reason no condition was laid down that
such consent should be obtained before sub-letting the premises"".
We are in agreement with this approach to the interpretation and it is in consonance with the view expressed by this Court earlier as mentioned
hereinbefore. In the aforesaid view of the matter we are of the opinion that it was necessary for the tenant to obtain the consent in writing to sub-
letting the premises. The mere permission or acquiescence will not do. The consent must be to the specific sub-letting and must be in writing. In
deed, there was no implied permission also here. Our attention was drawn to the fact that the landlord had written letter to the tenant and the
landlord objected to the sub-letting the moment he realised the situation.
(Paras 6 and 7) (Emphasis supplied).
Everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his
individual capacity. We are, however, in this case unable to agree. Firstly, in this case there was no case of waiver. Waiver is a question of fact
which has to be tested by facts and evidence. There was no conscious relinquishment of the advantage of any statue. No court has gone into this
fact. It does not seem to have been urged before the High Court also. Apart from this, in this requirement of the statute which is in the public
interest there cannot be any question of waiver of a right, dealing with the rights of the tenants or the landlord In Chaplin v. Smith, it was held that
physical possession was not sufficient, there must be legal possession.
(Para 13) (Emphasis supplied)
The said decision was followed in Duli Chand (Dead) by Lrs. Vs. Jagmender Das, and at page 176 of the Reports, their Lordships said that the
requirement of consent to be in writing was to serve a public purpose, i.e., to avoid dispute as to whether there was consent or not and that,
therefore, mere permission or acquiescence will not do. In paragraph 11, their Lordships emphasized the point thus:-
.......If the words were ""without consent of the landlord"" it might mean "" without consent, express or implied"" and in that sense question of waiver
may arise. The question of implied consent will not arise, if the consent is to be in writing.
Further, in the judgment reported in S. Jainmul Jain and Suraj Bal Vs. A.R. Nagarajan and M/s Premier Shipping Service 259, Thambu,
Chetty Street, George Town, Madras, 600 001 the learned Judge has held that by issuing a cheque by a third party representing the rent, sub
tenancy cannot be created or the tenancy relation will not emerge between the revision petitioners/landlords and a third party. Therefore, even
assuming that the 2nd respondent continues to be in possession of the property even after creation of tenancy in favour of the 1st respondent, it
would not support the case of the respondents, as the specific case of the landlords was that sub tenancy was created from the year 1994 and it
was proved by the revision petitioners/landlords that the 1st respondent parted with his possession and put the 2nd respondent in exclusive
possession of the property and no proof was filed by the respondents to prove that the 1st respondent continued to be in possession of the
property after 1994 and the 2nd respondent also admitted in Ex.P7 that 1st respondent shifted his Office from the lease hold premises and the
various Form No. 18 filed by the respondents also proved that the 1st respondent ceased to be in possession of the property and allowed the 2nd
respondent in exclusive possession of the property. Hence a clear case of sub letting was made out by the revision petitioners/landlords. Therefore,
the judgment of the learned Rent Control Appellate Authority is set aside and the order of eviction ordered by the learned Rent Controller is
confirmed and this Civil Revision Petition is allowed and six months time is granted to the respondents/tenants to vacate and hand over vacant
possession, on condition of filing an affidavit of undertaking by the respondents/tenants within a period of two weeks from the date of receipt of a
copy of the order, undertaking to vacate and hand over vacant possession of the petition premises to the revision petitioners/landlords within a
period of six months from the date of receipt of a copy of this order. No costs. Consequently, connected M.Ps are closed.