Varghese Ittoop vs M. Ibrahim and others

K.G. Bai Akrisbnan, J.—This is a writ petition filed under Art. 227 of the Constitution of India challenging the order passed by the District Judge in R. C.P. 122 of 1983. The landlord is the petitioner. The petition relates to a two storeyed building in Broadway, Binakolam. This building belonged to his father and as per'' Ext. A1 gift-deed it was given to the petitioner on 30-3-1973. This building was taken on rent originally on 1-9-65 by the father of respondents 8 and 9 herein for conducting a business in the name "Indian Hardware Stores". Monthly rent payable was Rs. 750/-. Petitioner contended before the Rent Control Court that he wanted the building in question for conducting a stationery business. The petition was originally filed against respondents 8 and 9 alleging that the petitioner bona fide required the building for own occupation. Respondents 8 and 9 contended that the building in question was taken on rent by them representing a firm of partners by name "F. N. Ibrahim Karim and Company" for the purpose of doing business in the name and style "Indian Hardware Stores" and that the partnership consisted of others also. It was alleged that the 8th respondent had retired from the firm and the business was being conducted by respondents 9 and 4. So, the 4th respondent was subsequently impleaded and this was followed later by impleadment of respondents 5 to 7 also. These respondents contended that the lease was obtained on behalf of the firm "Indian Hardware stores" and respondents 8 and 9 retired from the business and the same is being carried on by respondents 4 to 7. The respondents denied the bonafide requirement of the petitioner. The Rent Controller held that the lease was in favour of respondents 8 and 9 and they had filed an earlier application for fixation of fair rent and therefore the contention that the lease was in favour of a firm was rejected. The petitioner''s father was having stationery business nearby and the petitioner was doing business along with his father and therefore the Rent Controller held that he did not bonafide require the building. This order was challenged by all the contesting respondents 8 and 9. The appellate authority held that respondents 8 and 9 are the real tenants and that the petitioner bonafide required the building for own occupation. This order was challenged by respondents 4 to 7 before the District Judge, Ernakulam. The District Judge by exercising the re visional jurisdiction, set aside the order passed by the appellate authority and held that the petitioner did not require the building and that the petition was only a pretext for evicting the respondents. This finding is challenged in this proceeding.

Two fold contentions have been urged by the petitioner''s counsel. At first it is contended that the District Judge was not justified in interfering with the order passed by the appellate authority. The District Judge had only supervisory jurisdiction and the reappraisal of the whole evidence and coming to a different conclusion altogether was illegal and unjustified in the facts of the case. The next contention urged by the petitioner''s counsel is that respondents 4 to 7 are sub-tenants and they ate bound by the order of eviction passed against respondents 8 and 9 and they have no right to file a revision against the order of the appellate authority.

Udder the Kerala Buildings (Lease and Rent Control) Act (Act 2 of 1965; a tenant has been defined u/s 2 (6) and it specifically says that it does not include a person placed in occupation of a building by its tenant. So, the definition of tenant as such does not take in a sub-tenant within its purview. u/s 11 (4) (i) the landlord is given the right to recover possession of. the building 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. Proviso to Section 11 (4) (i) is to the effect that an application u/s 11 (4) (i) shall not be filed 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 or the sublease. Section 21 of the Act further says that any order for eviction of a tenant passed under this Act shall be binding on all sub-tenant under such tenant, whether they were parties to the proceedings or not, provided that such order was not obtained by fraud or collusion. Section 21 also says that in case where sub-letting is allowed under the original agreement of tenancy the sub-tenant shall be made a party to the proceedings if he bad given notice of the sub-tenancy to the land lord.

In Rupchand v. Raghuvanshi (AIR 1964 Supreme Court 1989) the question came up for consideration was whether a sub-tenant can challenge the decree passed in a suit between the landlord and the tenant. A landlord brought a suit against his lessee for ejectment without impleading the sub-lessee as defendant. The lessee did not contest and an experte decree for eviction was passed. The sub-lessee thereupon filed a suit against landlord and the lessor for declaration that he was not bound by the decree which had been obtained by collusion between defendants in order to injure the plaintiff and to evict him from the premise without the decree being passed against him. Repelling this contention the Supreme Court held :

I...it is clear that the law does not require that the sublessee need be made a party. It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sublessee as a party to the suit, the object of the landlord is to eject the sub-lessee from, the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act.

In Narayan v. Kalan Bai (AIR 1986 Rajasthan 52) a Single Judge of the Rajasthan High court took the view that the sub-tenants, unless there is a privity of contract between them and the landlord, have no locus standi to challenge the decree of eviction passed against the tenant-in-chief.

The learned counsel for the respondents contended that a subtenant is an aggrieved party and hence entitled to file an appeal or revision against the order passed in a proceedings between the landlord and the tenant. Reliance WAS placed on a decision reported in Kalyanasundaram Pillai v. Ramamoorthy (1985 KLT 922), It was held that a sub - tenant is a person aggrieved by an order and he can maintain appeal of revision against the order parsed against the tenant. It may be noticed that Kalyanasundaram Pillai''s case is not applicable to the facts of this case. Moreover, it is specifically stated that in a case where eviction is sought on the ground other than the grounds of sub lease different considerations may arise. In Katyanasundaram Pillai''s case the dictum laid down in Karam Singh v. Pratap Chand (AIR 1964 SC 1035) was followed to hold that sub-lessee is entitled to challenge the order of eviction passed against the lessor. I will presently show that the decision reported in Karam Singh v. Partap Chand (AIR 1964 Supremo Court 1305) also may not apply to the facts of this case.

The decision reported In Karam Singh v. Pratap Chand (AIR 1964 Supreme Court 1305) is a case coming under the Delhi Rent Control Act, 1958. Prior to the Delhi Rent Control Act, 1958 the Act applicable was Delhi and Ajmer Rent Control Act 1952 which prohibited eviction of the tenant at the suit of a landlord excepting the case mentioned in proviso to Section 13 therein. While such a matter was pending before the High Court, Delhi Rent Control Act 1958 cams into force. The Delhi and Ajmer Rent Control Act was repealed by the later enactment in so far as it relates to the Union Territory of Delhi. However, in Delhi Rent Control Act, 1958 there was a provision that all the pending proceedings shall be continued and disposed of in accordance with the provisions of the repealed Act. The question was considered in a proceedings initiated by the sub-tenant. But, it may be remembered that under the Delhi Rent Control Act and in the earlier Delhi and Ajmer Rent Control Act, 1952 the sub-tenant was included under the definitions of a tenant. It is so mentioned u/s 2 (1) of the Delhi Rent Control Act. Sections 14 (1) (b) and 14 (3) therein conferred specific rights on the sub-tenants. It was only under that circumstances the Supreme Court held that a subtenant had his own right to appeal from the decree. A sub-tenant who came into possession prior to the particular period was given all the benefits of the tenant whereas under Kerala Buildings (Lease and Rent Control) Act, 1965 (Act 2/65) the sub-tenant is not included within the definition of tenant and therefore Karam Singh Sobti and Another Vs. Shri Pratap Chand and Another, has no application.

Learned counsel for the respondents relying on a decision reported in Ebrahim Aboobakar v. Custodian General (AIR 1952 Supreme Court 319) contended that the respondents 4 to 7 who filed revision before the District Judge ate persons aggrieved and that they are entitled to maintain such petitions. It is pointed out that a person who is brought before a court to submit to a decision, if the decision goes against him thereby "is a person aggrieved by that decision". It may be noted the circumstances under which the respondents 4 to 7 were impleaded in the rent control proceedings. Initially the R. C. P. was filed by respondents 8 and 9 alleging that the petitioner bonafide required the building for own occupation. Respondents 8 and 9 contended that they left the partnership firm and the fourth respondent was conducting the business. Then the fourth respondent herein was impleaded. He later contended that the shop was in the possession of respondents 5 to 7. They too were impleaded subsequently. The Rent Control Court found that the original lease was not in favour of the firm and respondents 8 and 9 were alone tenants under the landlord. It is also important to note that respondents 8 and 9 filed application for fixation of fair rent and at no point of time they contended that the building was let out to a firm. There Is no evidence that the landlord gave permission to sub-lease the building to respondents 4 to 7 herein. Under the above circumstances respondents 4 to 7 cannot be held to be persons aggrieved by the order passed against respondents 8 and 9 as they have no legal right to challenge the same.

It may be remembered that in Jadavji Purushottam v. Navnitbhai (AIR 1977 SC 2146) the Supreme Court held that if a mortgages in possession was not empowered to create lease which would be binding on mortgagor after redemption of mortgage the tenant inducted by mortgagee is liable to be evicted on redemption of mortgage. That was a case in which the mortgagor mortgaged a house property with possession to mortgagee. The mortgage deed provided that the mortgage could be redeemed whenever the mortgagors paid the mortgage amount. Under one of the clauses of the mortgage deed the mortgagee was permitted to lease out the mortgaged house property to any one. The Mortgagee later filed a suit for recovery of mortgage amount which was resulted in consent decree. On making payment of mortgaged amount the final decree was drawn up. The mortgagor took out execution application for obtaining possession of disputed premises. It was alleged by the tenant that though the lease was given by he mortgagee, the lease was binding on the mortgagors as well. The Supreme Court held:

In view of the fact the mortgagors had not empowered the mortgagee to create a lease which would be binding on them after the redemption of the mortgage and the tenant''s rights as a tenant, did not become enlarged by means of any Tenancy legislation which came to be enacted after the lease was granted, the tenant could claim tenancy rights only as against his landlord viz., the mortgagee and not against the mortgagors. As soon as the mortgagee''s rights become extinguished by the redemption of the mortgage, neither he nor anyone inducted by him has a right to be in possession of the mortgage property. Consequently, the mortgagors were entitled to seek ejectment of the mortgagee and the tenant inducted by him. The tenant, had no independent rights and hence it was not necessary that he should have been made a party to the suit filed by the mortgagee or the execution application taken out by the mortgagors after the redemption of the mortgage. His position was akin to that of a sub-tenant whose rights were conterminous with those of the tenant himself. As such the execution application taken against the mortgagee would be binding on the tenant. Having no independent rights of his own, the tenant could not contend that the decrees and the execution application were not binding on him as he was not made a party to the proceedings.

In Kerala Shoe Company v. K. C. Bhaskarah (AIR 1989 Supreme Court 1110) the Supremo Court re-emphasised this position and held that a tenant continuing in possession even after the redemption of mortgage is liable to be evicted in a suit for recovery of possession by the mortgagor and it was held that a tenant was not entitled to the protection of Rent Control Act.

Under the Kerala Buildings (Lease and Rent Control) Act, the tub-tenant is excluded from the definition of tenant. The order passed against the tenant is binding on the sub-tenant. The position of the sub-tenant who came into possession of the premises without the consent of the landlord is akin to that of a tenant inducted by mortgagee. Merely because he is made a formal party to the proceeding; for eviction it does clothe him with the right to challenge the order of eviction passed in favour of the landlord against the principal tenant. The sub-tenant cannot be construed as a person aggrieved against such an order. Different considerations may arise if the question of sub - lease itself is a matter of adjudication and the eviction is sought u/s 11 (4) (i) i. e. unauthorised sub-lease. Respondents 4 to 7 have no case that the landlord permitted them to occupy the building. Under that circumstance they were not entitled to challenge the order of eviction passed and the revision filed by them was not maintainable. The revisional authority lacked jurisdiction, hence the impugned order is liable to be set aside. The counsel for the petitioner pointed out that even on the merits of the case the revisional authority was not justified in reversing the finding of the appellate authority. It is pointed out that the powers of the revisional authority. are only supervisory in character. Whereas the respondent''s counsel submitted that the revisional court was justified in reversing the finding on the question of bonafides and the revisional court has got power to consider the propriety and legality of the order. It may be noted that the petitioner contended that he wanted to start a stationery business in the building owned by him. His bonafides were suspected for the reason that his father was conducting a shop and the petitioner, being the only son, would join the business of his father and that the son did not really want to start a shop of his own. The revisional authority had also taken note of the fact that the father was suffering from same ailments and the petitioner''s help was necessary for him to conduct the business. There is no such evidence in this case. The evidence only shows that the petitioner''s father suspected that he had some heart ailment. The petitioner''s father ii having Independent business. The petitioner wanted to set up a stationery shop of his own and it is also submitted by the petitioner''s counsel that after the filing of this petition the petitioner has started a shop of his own in another part of the town for which he obtained a building by paying a heavy rent. This also is relevant fact to be reckoned within a proceedings for eviction on the ground of bonafide own occupation. Recently the Supreme Court held in Gulabbai Vs. Nalin Narsi Vohra and others, that for determining the question of bonafide need, subsequent events can be considered provided they are relevant for determining the question of bonafides. Earlier decision of Supreme Court in Hasmat Rai and Another Vs. Raghunath Prasad, Pasupuleti Venkateswarlu Vs. The Motor and General Traders, and Amarjith Singh v. Smt. Khatoon Quamarain ( 1987 (1) SCR 272) also hold the view that for making the right of remedy claimed by the party just and meaningful and also to accord with the current realities, the court can and must take cautions cognizance of events and developments subsequent to the institution of the proceedings. It is also proved that the petitioner was not in possession of any building of his own in the near vicinity. So, the evidence adduced by the petitioner clearly showed that he bonafide required the building for his own occupation and the appellate authority was justified in reversing the finding of the Rent Control Court and holding that the petitioner bonafide required the building for his own occupation. The revisional court was not justified in reversing this finding.

In the result, I hold that Ext. P3 order passed by the District Judge in R. C. R P. 122 of 1983 is illegal and unsustainable in law. I set aside the same and direct that the petitioner is entitled to get eviction on the basis of the order dated 7-10-1983 passed by the Rent Control Appellate Authority in R.C.A. 23 of 1981. The petitioner is entitled to get costs of this proceedings from. respondents 4 to 7.

Original Petition is allowed.