A. v. KAMMATH VS CHANDRAN — 1989 DIGILAW 73 (KER)

Judgment :- 1. Petitioners challenge the common order passed by the District Court, Ernakulam, in R.C.R.P. Nos. 111/86 and 9/87. Proceedings were initiated by the first respondent under the Kerala Buildings (Lease and Rent Control) Act, hereinafter referred to as 'the Act' to recover buildings bearing Door Nos. 2600 and 2602 in Ward No. 37 of Cochin Corporation from respondents 2 and e, tenants of the building, and petitioners who are the sub-tenants. Recovery was sought u/ Ss.11(e),11(4) (iii) and 11(5) of the Act. That claim of the first respondent was disputed by the tenants and the sub-tenants. By Ext.P2 order the Rent Control Court came to the conclusion that the need of own occupation asserted by the landlord is reasonable, honest and genuine and that the tenants have constructed another building which is reasonably sufficient to meet their requirements of business. It was further found that the landlord has no building of his own with facilities for expanding his present business. In view of these findings, the tenants and the sub-tenants who were respondents before the Rent Control Court were directed to surrender vacant possession of the building u/Ss.11(e) and 11(4) (iii) of the Act. 2. The original tenants challenged the order of the Rent Control Court in R.C.A. 83/84. The sub-tenants took up the matter before the Appellate Authority in R.C.A. 42/85. The Appellate Authority by Ext. Pe common judgment dismissed the appeals. The original tenants filed R.C.R.P. 111/ 86 challenging the decision of the Appellate Authority. The sub-tenants in their turn preferred R.C.R.P. 9/87. The Second Additional District Judge, Ernakulam, by Ext. P6 common order dismissed the revision petitions upholding the order of eviction passed u/Ss.11(e) and 11(4) (iii) of the Act. The sub-tenants challenge Ext.P6 order in this original petition. 3. This original petition is filed both under Art.226 and 227 of the Constitution. However, I am dealing with it only as one under Art.227. This is for the reason that the District Court functioning under S.20 of the Act acts as a civil court. It has been so held by this court in Vareed v. Mary, 1968 K.L.T. 583. This part of the judgment in Vareed's case has not been overruled by the Supreme Court in Aundal Ammal v. Sadasivan Pillai,1987 (1) K.L.T. 53. This is for the reason that the District Court functioning under S.20 of the Act acts as a civil court. It has been so held by this court in Vareed v. Mary, 1968 K.L.T. 583. This part of the judgment in Vareed's case has not been overruled by the Supreme Court in Aundal Ammal v. Sadasivan Pillai,1987 (1) K.L.T. 53. In such circumstances the order of the District Court being the decision of a civil court is not liable to be quashed by the issue of a writ of certiorari as held in the decision of this court in Nallakoya v. Administrator (1968 KLT 60). A writ petition under Art.226 will not therefore, lie and hence this petition can be treated only as one under Art.227. 4. The District Court, the Appellate Authority and the Rent Control Court concurrently found that the need alleged by the landlord for recovering the building is bona fide and is not a ruse to evict the tenants and the subtenants. They have also found that the landlord has no other buildings in his possession in the city for expanding his grocery business. On the basis of the evidence adduced by the parties they have entered concurrent findings of fact that the landlord genuinely requires the building for his own use. The authorities below have again concurred in finding that the tenants have put up building having a plinth area of more than 2000 sq. feet by the side of Shanmugham road, that the tenants are in possession of the same and that it is sufficient to meet their requirements and hence the landlord is entitled to recover his building u/S. 11(4) (iii) of the Act. These concurrent findings of fact are based on legal evidence. By no stretch of imagination can that findings be termed as perverse. It is not possible to state that the said findings are so unreasonable that it could not have been arrived at by any judicial authority. In such a situation, those findings are not open to challenge in this original petition filed under Art.227 of the Constitution. 5. Ext. P1 is the lease deed by which the buildings were demised in favour of the original tenants, respondents 2 and e. That lease deed allows the tenants to sub-lease the same. In such a situation, those findings are not open to challenge in this original petition filed under Art.227 of the Constitution. 5. Ext. P1 is the lease deed by which the buildings were demised in favour of the original tenants, respondents 2 and e. That lease deed allows the tenants to sub-lease the same. It further provides that the sub lease if granted will not be a ground for recovering the building under the Rent Control Act. In pursuance to this provision, respondents 2 and 3 granted sub lease to the petitioners. So, they must be treated as sub lessees who have come into possession of the property with the permission of the landlord. Such sub-tenants, according to learned counsel appearing for the petitioners, are entitled to claim all protections that are available to the original tenants. The landlord in the instant case wanted recovery of the buildings u/S. 11(e) of the Act. Second proviso to that clause allows the tenant to successfully prevent eviction if he is depending for his livelihood mainly on the income derived from any trade or business carried on in the building and if there is no other suitable building available in the locality for him to carry on such business. The petitioners being the sub-tenants with permission of the landlord are entitled to the benefit of the above provision. The authorities below have wrongly denied that benefit to the petitioners. The petitioners were not allowed to let in any evidence to substantiate their rights under the 2nd proviso to S.11(e) either. Hence it is argued that the orders passed by the authorities below are contrary to law and liable to be quashed. 6. The landlord has been allowed to recover possession of the buildings on the ground that the tenants have in their possession another building reasonably sufficient for their requirements in the city. The tenants' possession of the other building cannot be, it is contended, taken as a ground for evicting the sub-tenants who have come into possession of the buildings with the permission of the landlord. According to counsel, on the facts of this case, the authorities below ought to have examined whether the sub-tenants who are in possession of the building have in their possession other building reasonably sufficient for their requirements. Since they are not having such building no order u/S. 11 (4) (iii) should have been passed. According to counsel, on the facts of this case, the authorities below ought to have examined whether the sub-tenants who are in possession of the building have in their possession other building reasonably sufficient for their requirements. Since they are not having such building no order u/S. 11 (4) (iii) should have been passed. This having not been done, it is contended that the order of eviction passed u/S. 11 (4) (iii) of the Act is illegal. 7. The main contention of the petitioners is that sub-tenants when occupy the building with the consent of the landlord have to be treated as original tenants and they are entitled to get all the benefits and privileges of the tenants as against the landlord. The learned counsel appearing for the petitioners submits that the second part of S.21 of the Act makes it obligatory on the part of the landlord to implead the sub-tenants who have come into possession of the buildings with the permission of the landlord, in the proceedings under the Act. This has been so provided by the legislature, according to counsel, only because such sub-tenants are not bound by the order of eviction passed against the tenants. The natural consequence, it is submitted is that the sub-tenants who got possession of the buildings with the permission of the landlord must be taken to have replaced the original tenants and consequently acquired all rights and privileges of the original tenants under the Act. If not, it is argued that there was no necessity to have such sub-tenants to be made parties in the proceedings under the Act. I shall proceed to examine this contention of the petitioners in detail. 8. S.2(6) of the Act defines 'Tenant' in the following terms: "Tenant" means any person by whom or on whose account rent is payable for a building and includes: (i) xxx xxx (ii) A person continuing in possession after the termination of the tenancy in his favour, but does not include a Kudikidappukaran as defined in the Kerala Land Reforms Act 1963 (Kerala Act 1 of 1964) or a person placed in occupation of a building by its tenant, xxx xxx xxx xxx xxx." This definition excludes from the ambit of "tenant" persons placed in occupation of the building by its tenant. Sub-tenant can essentially be considered as a person placed in occupation of the building by its tenant. Sub-tenant can essentially be considered as a person placed in occupation of the building by its tenant. Therefore, the definition "tenant" under the Act excludes 'sub-tenant', he being a person placed in occupation of the building by its tenant. Sub-tenant may be placed in occupation of the building with the permission of the landlord. He may be one who came into occupation without the permission of the landlord. No distinction between these categories of sub-tenants is contemplated by the definition. A sub-tenant who came into occupation of the building with the permission of the landlord stands in the same footing as a person who came into occupation without permission of the landlord, as far as the definition is concerned. Since the definition does not make any distinction between subtenants who occupy the building with the consent of the landlord and those coming into possession without the consent of the landlord, I cannot agree with the learned counsel appearing for the petitioners that the former category of sub-tenants are entitled to all the protections that are available to the tenants under the Act. 9. S.21 of the Act reads: "Any order for the eviction of a tenant passed under this Act shall be binding on all sub-tenants under such tenant whether they were parties to the proceedings or not provided that such order was not obtained by fraud or collusion. In cases where sub-letting is allowed under the original agreement of tenancy the sub-tenant shall be made a party to the proceedings if he had given notice of the sub-tenancy to the landlord." As per this section any order of eviction passed against a tenant shall bind on all sub-tenants under that tenant. They are so bound even if they are not parties to the proceedings. Sub-tenants can free themselves from the clutches of that order only if they establish fraud or collusion between the landlord and the original tenant. This provision does not make any distinction between sub-tenants who occupy the building with or without consent of the landlord. In cases where the sub-letting is allowed under the original lease, the second part of S.21 mandates that such sub-tenants should be made a party to the proceedings initiated under the Act. It is so only if notice of the sub-tenancy is given to the landlord. What is the purpose of behind this provision? In cases where the sub-letting is allowed under the original lease, the second part of S.21 mandates that such sub-tenants should be made a party to the proceedings initiated under the Act. It is so only if notice of the sub-tenancy is given to the landlord. What is the purpose of behind this provision? According to me, a sub-tenant who has come into occupation with the consent of the landlord can successfully prevent the claim for eviction u/S. 11 (4) (i) of the Act. U/S. 11(4) (i) transfer by the tenant to the subtenant is a ground for the landlord to recover the building. That right of the landlord cannot be pressed into service if the sub-lease was either sanctioned by the original lease or has been effected with the consent of the landlord. A sub-tenant who is in occupation with the consent of the landlord gets only J this protection, viz., exemption from eviction based on S.11(4)(i). No other right is available to such a sub-tenant. The Act protects the tenants. Tenants alone are allowed security and protection under it. The tenant cannot by sub-letting the building extend this protection to others. If the sub-letting is by agreement of the landlord then that sub-tenant will not be liable to eviction under S.11(4) (i) of the Act. This is the scheme of the Act. 10. The effect of a decree passed against a tenant as against a sub-tenant came up for consideration before the Supreme Court in Rupchand Gupta v. Raghuvanshi (Private) Ltd and another (A. I. R.1964 SC 1889). In that case the landlord instituted a suit against his tenant for eviction. That suit was decreed. The sub-tenant challenged that decree. When that proceedings came up before the Supreme Court, Their Lordships observed: "It is quite clear that the law does not require that the sub-lessee 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 sub-lessee 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. 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 sublease. The law allow this and so the omission cannot be said to be an improper act." 11. Ext. P1 is the lease deed executed by the original tenants in favour of the landlord. As per that lease deed the tenant is given right to sub-lease any portion of the building. It further provides that such sub-lease will not be a ground for eviction under the Rent Control legislation. But the lease deed further provides that the sub-lessees will not acquire any right which is not available to the original tenant. In other words the lease deed, Ext. P1, limits privileges of the sub-tenant. The sub-tenant cannot claim any right over the building which the tenant himself is not entitled to. Viewed in that manner, the petitioners who came into possession of the building as sublessees cannot put forward any right of their own to prevent the order for recovery in favour of the landlord. In view of the specific provision in Ext. P1, the petitioners cannot put forward any independent right to the tenanted premises. If the original tenant is not entitled to prevent the order of eviction under the Act, the sub-tenant will also be subjected to the same disability. 12. In Appukuttan v. Rent Controller (1987 (2) K.L.T. 932), Thomas, J. observed: "A sub-tenant is also a person who pays rent to his landlord, though his landlord may be the tenant of the owner of the building. It may be, there is no privity of contract between the owner of the building and the sub-tenant. Even then, under law a sub-tenant is also a tenant, though for certain other purposes a sub-tenant has no protection or claim as against the original landlord. The explanation given to the definition of "landlord" in S.2(e) of the Act makes the position further clear. That Explanation reads thus: "A tenant who sub-lets shall be deemed to be a landlord within the meaning of this Act in relation to the sub-tenant". The explanation given to the definition of "landlord" in S.2(e) of the Act makes the position further clear. That Explanation reads thus: "A tenant who sub-lets shall be deemed to be a landlord within the meaning of this Act in relation to the sub-tenant". What is deducible from the said Explanation is that a sub-tenant cannot be excluded from the purview of the definition of the word "tenant" in the Act." This observation was relied on by the learned counsel appearing for the petitioners to contend that the sub-tenants are also tenants and consequently they are entitled to all the privileges that are available to the original tenants. For a proper understanding of the said observation it is necessary to understand the facts of that case. The landlord filed an application for eviction on the ground of sub-letting u/S. 11 (4) (i) of the Act. That application was against three persons, tenant and sub-tenants including Appukuttan the petitioner before this court. Before, Appukuttan could enter appearance before the Rent Control Court, the tenant withdrew his contentions and hence the Rent Control Court passed an ex parte order for eviction. The petitioner filed an application to set aside that ex parte order. The authorities below disallowed his prayer. When the matter came up before this court, this court allowed his prayer and directed the authorities below to dispose of the case on merits. S.2 of the Act defines various terms with the prefix "unless the context otherwise requires" So, on the facts, subject to contextual adaptation, this court made the above quoted observations to allow the sub-tenant who was made a party in that proceeding and was successfully prevented from raising any contention on account of the collusion between the landlord and the tenant to enter appearance and prosecute the proceedings. An ex parte decree happened to be passed on account of tenant withdrawing from the contentions even before the sub-tenant who was made a party entered appearance. Such an order will certainly fall within the first part of S.21 of the Act. That order was open to challenge by the sub-tenant. It can be taken that the above observations were made by the learned judge only because of those rights which were available to the sub-tenant. Those observations cannot in any way go to support the argument now put forth by the petitioners. 13. That order was open to challenge by the sub-tenant. It can be taken that the above observations were made by the learned judge only because of those rights which were available to the sub-tenant. Those observations cannot in any way go to support the argument now put forth by the petitioners. 13. It is settled law that there is no privity of contract between the landlord and a sub-tenant. The sub-tenant cannot in his own right question the right of the landlord to recover possession. The legal position of a sub-tenant, being as stated above, the petitioners cannot, in their own right claim the benefit of the second proviso to S.11 (e) of the Act. Nor can they challenge the order of eviction passed u/S. 11 (4)(iii) on the ground that they are not possessed of any building sufficient for their business. The authorities below were perfectly justified in allowing the landlord to recover the buildings taking note of the rights of the tenants who are respondents 2 and e. I find no ground to interfere with the orders passed by the authorities below. 14. Lastly, the learned counsel appearing for the petitioners submitted that the petitioners were conducting the business in the premises for nearly 20 years and that they require sometime to settle the accounts with their customers before surrendering possession of the buildings. Accordingly, it was prayed that the petitioners may be granted one year's time to surrender possession of the building. Taking into consideration the entire facts and circumstances of the case, I think the petitioners should be granted four months' time for surrendering the building to the first respondent. If the petitioners give an unconditional undertaking before the Rent Control Court, within three weeks from today to the effect that they will surrender the buildings to the first respondent on or before 12-6-1989 they will be granted time till that date, viz., 12-6-1989. The original petition is disposed of in the above terms. I make no order as to costs.