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1976 DIGILAW 41 (KER)

SREEPATHI POTI v. VENKITASUBRAMONIA IYER

1976-02-17

N.D.P.NAMBOODIRIPAD

body1976
Judgment :- 1. Both these revisions arise out of a proceeding initiated by a landlord under S.11 of the Kerala Buildings (Lease and Rent Control) Act, Act 2 of 1965, (for brevity the Act) for eviction of a tenant from a building situated within the Corporation of Trivandrum. 2. The three grounds relied on by the landlord for eviction are: (a) default in the payment of rent; (b) sub-letting of the premises by the tenant to third parties; and (c) necessity for reconstruction of the building. The tenant denied all the grounds. Arrears were, however, deposited during the pendency of the action. The Rent Control Court refused to accept the landlord's case that the building needed reconstruction, but it found that the tenant had sublet the premises to one Krishnan Nair, and consequently eviction was ordered on that ground. Both sides were not satisfied with that decision, and two appeals were filed. Both the appeals were dismissed; and two corresponding revisions also met with the same fate. The tenant has filed C. R. P. 2148/75 against the order of eviction on the ground of sub-letting, while the landlord has filed C. R. P. 152/1976 challenging the finding regarding the necessity for reconstruction of the building. 3. In CRP. 2148/1975 the revision petitioner tenant challenges the order of eviction on the ground of sub-letting on two grounds. It is contended that though it has been concurrently found by the authorities below that one Krishnan Nair has been inducted into the ground floor of the building, a sublease within the meaning of S.1 1(4)(i) of the Act has not been positively proved by the landlord. The revisional authority found that portions of this building were occupied by different persons on short intervals, but that authority did not pay much importance to that aspect because it thought that the occupation of the ground-floor by Krishnan Nair alone is sufficient to constitute sub-letting for attracting S.11(4) (i). That Krishnan Nair is in exclusive occupation of the ground floor of the building in question is not disputed before me. According to the revision petitioner apart from that fact the landlord has not pleaded or adduced evidence regarding the terms and conditions under which Krishnan Nair was inducted into the property by the tenant. I doubt whether the onus cast on the landlord under S.11(4)(i) of the Act goes to that extent. According to the revision petitioner apart from that fact the landlord has not pleaded or adduced evidence regarding the terms and conditions under which Krishnan Nair was inducted into the property by the tenant. I doubt whether the onus cast on the landlord under S.11(4)(i) of the Act goes to that extent. I may in this connection advert to one passage in the decision reported in Ulliiveetil Abu v. Beebi C. P. (ILR 1969 2 Kerala 575 at p. 585): "While the initial onus of proving subletting or a transfer of the leasehold is on the landlord, once the Court is satisfied that there has been a transfer of possession the onus may shift and the tenant, within whose special knowledge the facts explaining the manner in which such possession has been transferred lie, may have to bear the burden thereafter." There has undoubtedly been a transfer of possession of a portion of the premises by the tenant, and the terms and conditions under which such a transfer was made will be known only to the transferor and the transferee and not to the landlord. It is for the tenant in such cases to establish the jural relationship as obtained between him and his transferee. In this case this particular aspect is of some importance because the tenant put forward a definite case regarding the occupation of the premises by Krishnan Nair. According to the tenant the hotel business conducted there by Krishnan Nair was carried on in partnership with the revision petitioner-tenant. That part of the tenant's case has not been proved by acceptable evidence, and the authorities below have concurrently found that the alleged partnership has not been proved. I do not find any reason to interfere with that finding. 4. In the nature of the pleadings and the evidence in the case only two propositions came up for consideration before the authorities below, namely, whether there is a sub-lease of the premises by the tenant to Krishnan Nair as alleged by the landlord or whether Krishnan Nair and the tenant carried on the hotel business in partnership as contended by the tenant. When once it has been found that the tenants' contention is unfounded the necessary conclusion that has to be drawn is that the landlord's case is proved. When once it has been found that the tenants' contention is unfounded the necessary conclusion that has to be drawn is that the landlord's case is proved. There is no acceptable material in this case to hold that the tenant has established facts for negativing the intention to create a lease in favour of Krishnan Nair. Considering the facts and circumstances of the case I am satisfied that the sub-lease alleged by the landlord is true, and the finding of the authorities below in that respect has only to be confirmed. 5. The second contention advanced by the revision petitioner-tenant is that even if a sub-lease has been established due to certain other facts it has to be presumed that the sub-letting had the consent of the landlord. This contention is mainly based upon an earlier eviction proceedings initiated by the same landlord as B R.C. No. 61/1970 of the Principal Munsiff's Court, Trivandrum for eviction of the same tenant on the ground of sub-letting portions of the building to two different sub-tenants. Exts. BI and B2 are copies of the orders passed in that case by the appellate authority and the revisional authority respectively. I was taken through the relevant passages in both orders. As far as I was able to read through Ext. BI the impression which I gained was that the consent relied on by the appellate authority for denying eviction was substantially based upon subsequent conduct of the landlord in accepting rent from the sub-tenant on behalf of the tenant. Even assuming that Exts. BI and B2 are to be read as holding that previous consent has been established the question is whether that finding has the effect of granting the same tenant the right to sub-lease the premises on subsequent occasions to any other sub-tenant without the separate and independent consent of the landlord. According to the revision petitioner-tenant in view of the legislative changes which S.11 (4) (1) of the Act underwent it has to be inferred that consent to sub-let on one occasion is sufficient to disable the landlord from seeking reliance on that provision to support an action for eviction on the basis of subsequent sub-letting, even if it be to other independent sub-tenants. To appreciate this contention it may be necessary to advert to the provisions in the previous statutes. To appreciate this contention it may be necessary to advert to the provisions in the previous statutes. For the purpose of this case it is sufficient to start with the Kerala Buildings (Lease and Rent Control) Act 1959, (Act 16 of 1959). S.11 (4) (i) of that Act is in the following terms: "4. 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 has without the content of the landlord transferred his right under the lease or sublet the entire building or any portion thereof, if the lease does not confer on him any right to do so, or the landlord has not condensed to such subletting;" This section was subsequently amended by Act 29 of 1961; and the amended provision is in the following terms: "((i) if the tenant after the commencement of this Act, 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; or" S.11 (4) (i) as so amended has not undergone any material change even after the replacement of the old statute by Act 2 of 1965. In short, the argument developed by the revision petitioner is that the expression "such" occurring in the sentence "or the landlord has not consented to such subletting" in the old provision necessarily implies that the consent contemplated thereunder was for individual sub-letting. According to the revision petitioner the omission of the expression "such" in the amended provision would indicate that the legislature never intended that for each sub-letting there must be independent consent. To me it appears that the change in phraseology is more indicative of a change in the drafting technique than the deviation of the legislative intent. A close scrutiny of the provision as it originally stood would indicate that the drafting pattern adopted therein was rather repetitive to a certain extent, and it was only for greater elegance that a different pattern was adopted by the amending statute. A close scrutiny of the provision as it originally stood would indicate that the drafting pattern adopted therein was rather repetitive to a certain extent, and it was only for greater elegance that a different pattern was adopted by the amending statute. I cannot read through the amended provision any intention on the part of the legislature to lay down the proposition that if consent was once given to a particular subletting (whether anterior or subsequent) the tenant is at liberty to sub-let the premises on subsequent occasions without the consent of the landlord to whomsoever he chooses. The revision petitioner-tenant has no case that for the sublease agitated in these proceedings there was the consent of the landlord either expressly or by necessary implication. I am satisfied that there has been a sub-letting of the ground floor of the disputed building by the revision petitioner to Krishnan Nair without the consent of the landlord and that his conduct in doing so offers a valid ground for eviction under S.11 (4) (i) of the Act. The order passed by the authorities below for eviction on the ground of sub-letting is hereby confirmed; and CRP. 2148/1975 is dismissed. I make no order as to costs. 6. In CRP. 152/1976 the revision petitioner landlord wanted to re-agitate the question whether eviction should be ordered on the ground that the building is in such a condition that it needs reconstruction. This question has been considered by the authorities below, and I am not persuaded to take a different conclusion. The revision petitioner has not satisfied me that the building is in such a condition that it needs reconstruction as enjoined by S.11 (4) (iv) of the Act. There is no merit in this revision, and it is hereby dismissed. I make no order as to costs. The learned counsel for the tenant represented that the tenant may be given some time to vacate the premises. On the undertaking by the tenant to vacate the premises before the 1st of April, 1976, the tenant is permitted to continue his occupation of the building in dispute till 31st March, 1976.