Narayana Pillai vs Kochassan Kunju

Subramania Iyer, J.—This second appeal by the 2nd Defendant arises in proceedings in execution of a decree for eviction of a building in Quilon to which the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950 applies. The Plaintiff was himself a lessee of that building under its owner. The suit was on foot of a lease granted by the Plaintiff to the 1st Defendant with a view to enabling the 2nd Defendant to occupy it for purposes of his business. The plaint averred the term of the lease between the Plaintiff and the 1st Defendant. It averred further that there was an oral agreement entered into between the Plaintiff and the 2nd Defendant to pay rent of the building direct to the Plaintiff and to pay an enhanced rent some time after the lease.

The 1st Defendant was ''ex parte''. The 2nd Defendant denied the oral agreement alleged in the plaint between himself and the Plaintiff. The 1st Defendant was examined in the case as a witness for the defence who swore to the averments in the plaint. Believing his testimony, the Munsiff granted a decree as sued for against both the Defendants upholding the agreement by the 2nd Defendant directly with the Plaintiff to pay the original rent fixed as also the enhanced rent.

On appeal by the 2nd Defendant to the District Judge, that part of the decree which fastened liability upon the 2nd Defendant was reversed as in the learned Judge''s view the alleged agreement between the Plaintiff and the 2nd Defendant had not been proved and in the absence of such a contract, there is no jural relation between the Plaintiff and the 2nd Defendant on which could be based the grant of any relief for rent. The 2nd Defendant, therefore, became free from any liability for rent.

When the Plaintiff decree-holder applied for execution of the decree by eviction, objections were raised by the 2nd Defendant based on the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950 and he pleaded that without an order of the Rent Controller, he cannot be ousted from out of possession. Both the Courts below repelled this contention.

The only question that arises and that was argued by learned Counsel for the Appellant is whether his client is entitled to the protection afforded by the said Order and whether he is entitled to claim immunity from eviction except pursuant to an order of the Rent Controller. Attention is drawn to the definition of the landlord and tenant contained in Section 2, clause 3 and 4. Stress is laid upon the explanation to clause 3 which is to the effect that "a tenant who is entitled to sub-let shall be deemed to be a landlord within the meaning of this order." Reliance is also placed upon Section 3, clause (1) and (3), and upon Section 9, clause 2, Sub-clause (ii).

The point that is sought to be made by reference to the aforesaid provisions of the Order is that a sub-tenant is recognized by the Control Order and that if the sub-lease be before the commencement of the Travancore Building Rent Control Order, 1122 or the Cochin Buildings (Lease and Rent Control) Act, 24 of 1121, as the case may be, it would be protected and that such a sub-lessee would come in for the rights given to a tenant under the Control Order. Section 9, Clause (2) provides for the various grounds on which the landlord can claim eviction, one of which is that the tenant has sub-let the premises after the statutes referred to in Sub-clause (ii) without the written consent of the landlord. The argument sought to be raised based on this sub-clause is that a sub-lease effected before the said statutes (of Travancore or Cochin as the case may be) would come in for protection under the Buildings Lease and Rent Control Order.

The inference sought to be drawn does not arise. Sub-clause (ii) of clause (2) only says that if the tenant sub-lets without the landlord''s written consent after the dates of the commencement of the two statutes mentioned in that sub-clause, then that would be a ground for eviction. It does not lead to any inference that should the sub-lease be before these dates, such a sub-lease would be immune from eviction under the terms of the Order. The explanation to the definition of ''landlord'' contained in Section 2, clause (3), provides that a tenant who is entitled to sub-let shall be deemed to be a landlord. Clause (4) of Section 2 which defines the word "tenant" excludes from the ambit of the order,

a person placed in occupation of a building by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter-house or rents for shops has been farmed out or leased by a Municipal Council.

The question is whether the sub-tenant will come within the ambit of the explanation to Clause (3) of Section 2 in which event he will be beyond the protection of the Order, or whether he will come within the ambit of clause (4) of Section 2. To become a tenant u/s 2(4), he must be a person "by whom or on whose account rent is payable for a building." So far as a Sub-tenant is concerned, there is neither privity of estate nor privity of contract between him and the sub-lessor and in the absence of a contract or legal liability to pay rent to the landlord, a sub-lessee cannot be called a person "by whom or on whose account rent is payable." Clause (1) of Section 3 is relied upon to explain Clause (3) of that section which provides for the giving of notice of vacancy by the landlord to the Controller when a vacancy arises on account of the tenant putting Anr. person in occupation of the premises and not re-occupying it within a period of one month.

The explanation to that clause exempts sublessees under a tenant entitled to sub-let and which sub-lease is given after giving due notice to toe Controller in conformity with the provisions of that clause. It is not clear what assistance the Appellant can derive from the provisions of this clause.

The Buildings (Lease and Rent Control) Order, 1950 regulates the rights only of immediate parties. In this case, if it had been the 1st Defendant that wanted eviction from the 2nd Defendant, the 2nd Defendant could have availed himself of the provisions of the Order. When the Plaintiff seeks eviction of the building from his lessee, the 2nd Defendant who is only a sub-lessee under the first Defendant cannot raise any claim. The Plaintiff has no claims against the 2nd Defendant and the 2nd Defendant cannot have any against the Plaintiff. Rights and liabilities must be mutual.

As already stated, there is no jural relation between the Plaintiff and the 2nd Defendant and it is only in cases where a jural relation exists that the rights of a tenant are to be protected under the Rent Control Order. The 2nd Defendant successfully contended that he is not liable to pay rent to the Plaintiff. Having obtained immunity from that liability, it is certainly a venture that he now claims a right against the Plaintiff.

I do not find it necessary to embark upon a more detailed discussion of this question as to me it appears that the matter is clearly beyond any serious controversy. The result is that the orders passed by the Courts below are correct and this second appeal should therefore be dismissed with costs.