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1980 DIGILAW 223 (KER)

ANNAKUTTY v. PADMAVATHY AMMA

1980-09-18

G.VISWANATHA.IYER

body1980
Judgment :- 1. The third counter-petitioner in a rent control proceeding is the revision petitioner. The Rent Control Court, the Appellate Authority and the Revisional Court concurred in finding that a part of the leasehold has been sub-let by the tenant to the second counter petitioner which entitles the landlord to apply for eviction under S.11 (4) (i) of the Kerala Buildings (Lease and Rent Control) Act. It is this decision that is challenged in this revision petition filed under S.115 CPC. 2. Two grounds were urged by the petitioner's counsel in support of this revision. Firstly it was contended that on the finding of the Subordinate Tribunals that a portion of the tenancy has been sub-let to the second counter-petitioner, the applicability of S.108 (j) of the Transfer of Property Act has been ignored or has been overlooked by the Subordinate Tribunals in ordering eviction. In other words normally a tenant is entitled to sub-lease or sub-let and in the absence of any prohibition in the rent deed it is open to the tenant to sub-let or transfer possession. That will not entitle the landlord to terminate the tenancy or get possession of the lease-bold. S.11 (4) (i) excluding the proviso and the Explanations reads as follows: "11 (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 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;" The argument of the petitioner's counsel is that unless the lease-deed prohibits a transfer or sub-lease the general law confers on a tenant a right to do so and therefore it is for the landlord in this case to prove that the particular lease transaction prohibits a tenant from sub-letting. This contention has no merit and it is not necessary to go into the reasons for holding so as this point is covered by a recent decision of the Supreme Court dated 30th July 1980 in C.A. 140 of 1979: (1980 KLT. 709). This contention has no merit and it is not necessary to go into the reasons for holding so as this point is covered by a recent decision of the Supreme Court dated 30th July 1980 in C.A. 140 of 1979: (1980 KLT. 709). The identical point pressed for consideration here was the only point pressed for consideration in that appeal and their Lordships of the Supreme Court rejected that contention taking the view that in a matter like this the rights of the landlord and tenants are governed by only the provisions of the Rent Control Act. When the Rent Control Act provides that the lease must confer a right to sublet or transfer, it means that there must be an express provision conferring that right to the tenant. There is no case for the petitioner that the lease transaction in this case confers such a right. In the light of that Supreme Court decision this contention has only to be rejected. 3. The next point argued in support of the revision petition is that the evidence let in this case is insufficient to hold that the tenant has sub-let a portion of the building to the second counter-petitioner. According to the petitioner's counsel all the Tribunals have come to this conclusion only on the basis of a cash bill Ext A7 said to have been issued by the second counter-petitioner to pw 2 the driver of pw. 1. No doubt this Ext. A7 is denied by the second counter-petitioner. But in the light of the evidence of pw. 2 that has been accepted by the subordinate Tribunals, it may not be open to this Court to re-examine the evidence regarding the genuineness of Ext. A7. We have to take it that Ext. A7 was issued by the second counter-petitioner to pw. 2. Ext. A7 shows that as proprietor the second counter-petitioner is doing a business in this building and for some service charges he has issued that bill. Apart from Ext. A7 the landlord has proved a number of other factors in this case for proving that the second counter-petitioner is in exclusive possession of a portion of the building. In that connection f he respondent's counsel relied on the fact that a notice issued before the rent control proceeding was accepted at the address of this building by the second respondent. In that connection f he respondent's counsel relied on the fact that a notice issued before the rent control proceeding was accepted at the address of this building by the second respondent. Even the vakalath filed in this case shows the address of the second counter-petitioner as doing business in this building and there is the oral evidence of Pws.1 and 2 in support of this case. Taking all these the Rent Control Court and the Appellate Court have rightly come to the conclusion that the second counter petitioner is in exclusive possession of this building and doing business on his own account. Then the further question is whether from this one fact alone the court can draw the inference that a case of sub-lease has been made out. The respondents' counsel tried to support this conclusion in the light of the facts of this case. It is not a case of the petitioner in this revision or the second counter-petitioner in the Rent Control proceeding that the second counter-petitioner is in occupation under an arrangement other than that pleaded by the landlord and the case of the landlord is that a portion of the building has been sub-let to the second counter-petitioner When it is proved that the second counter-petitioner is in possession and the tenant has no other explanation to offer regarding the nature of the possession the court can in the light of S.106 of the Evidence Act accept the case of the landlord and hold that the landlord has made out a case pleaded by him. In view of that I hold that the landlord has proved that there is a case of sub-lease. In view of this the finding of the Rent Control Court confirmed by the Appellate Authority and the Revisional Authority do not call for interference. 4. One more point was submitted for consideration by the petitioner's counsel. According to him pending the revision petition before the District Court the landlord transferred the building to a stranger and the stranger has come forward to implead himself as an additional respondent in the revision. According to the petitioner's counsel S.22 of the Rent Control Act extends the provisions of S.146 and Order XXII CPC. only in so far as those provisions relate to legal representatives of deceased party. According to the petitioner's counsel S.22 of the Rent Control Act extends the provisions of S.146 and Order XXII CPC. only in so far as those provisions relate to legal representatives of deceased party. It is too much to limit the scope of S.22 by reading the marginal note in that section. The section cleanly provides that the provisions of S.146 and Order XXII CPC. shall as far as possible apply to those proceedings. Both S 146 and Order XXII R.10 enables a transferee of a property to come forward and proceed with the action from the stage at which it was at the time of assignment. The right to apply on the ground of subletting is not something personal to the landlord as in the case of a ground for bona fide use. If the tenant has violated the provisions of S.11(4)(i) a right is obtained by the landlord and that right is transferable just like any other right along with the possession of the property by this transfer. In this view I do not find any substance in the petitioner's contention in this point. There is no other point for consideration. In the result the Civil Revision Petition is dismissed with costs. Dismissed.