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2000 DIGILAW 689 (KER)

George v. Ramachandra Reddiar

2000-12-22

P.K.BALASUBRAMANYAN, T.M.HASSAN PILLAI

body2000
Judgment :- P.K, Balasubramanyan, J. Respondent NO.2 in R.C.P. 76 of 1987 on the file of the Rent Control Court, Alleppey is the petitioner in C.R.P. No. 919 of 1992 filed under S.20 of the Kerala Buildings (Lease & Rent Control) Act. The Revision Petitioner died pending the Revision and his legal representatives were impleaded as additional petitioners 2 to 4 in the revision. The first respondent herein, the landlord of the building which consisted of ten rooms in the up-stair portion of a building out of twelve rooms therein filed the application R.C.P. 76 of 1987 for eviction of his alleged tenant one Thankappan impleaded as respondent No.1 before the Rent Control Court under sub-ss.2, 3 and 4(i)of S.11 of the Act. George, original revision petitioner was impleaded as respondent No. 2 before the Rent Control Court on the allegation that Thankappan the tenant had sublet the building unauthorisedly to George and that enabled the landlord to an order for eviction under S.11(4)(i) of the Act. In support of his plea under S.11(3) of the Act the landlord pleaded that he bonafide needed the petition schedule building for the starting of a lodging house by his eldest son who was dependent on him. The landlord or his son had no other building of their own. Thankappan was impleaded as respondent No. 2 in this revision and he having died, his legal representatives are sought to be impleaded as additional respondents 3 to 7. An objection was filed in the Rent Control Court purporting to be on behalf of Thankappan and George denying that there was any rent in arrears, denying the bonafide need set up by the landlord and denying the subletting alleged. Subsequently, Thankappan appeared and submitted before court that he had not joined in the objection nor had he engaged anybody to appear for him to file such an objection. Thankappan also gave evidence as PW. 2 in effect supporting the case of the landlord that he was the original tenant and he had sublet the building to George and it was the duty of George to pay the rent. The Rent Control Court held that the rent was in arrears and the landlord was entitled to an order for eviction under S.11(2) of the Act. 2 in effect supporting the case of the landlord that he was the original tenant and he had sublet the building to George and it was the duty of George to pay the rent. The Rent Control Court held that the rent was in arrears and the landlord was entitled to an order for eviction under S.11(2) of the Act. The Rent Control Court also held that the landlord bonafide needed the petition schedule building for own occupation and was entitled to an order for eviction under S.11(3) of the Act. The Rent Control Court also held that the tenant was Thankappan going by the rent deed admittedly executed by Thankappan in favour of the landlord and going by the other evidence in the case and that there was a subletting in favour of George as alleged by the landlord and that subletting entitled the landlord to an order for eviction under S.11(4)(i) of the Act. Thus the Rent Control Court ordered eviction on all the three grounds. The person found to be a sub tenant by the Rent Control Court namely George filed an anneal before the Authority. Thankappan was impleaded as respondent No.2 in that appeal. The Appellate Authority on a re-appraisal of the relevant materials came to the conclusion that there was an unauthorised subletting In favour of George by the tenant Thankappan and this entitled the landlord to an order for eviction under S.11(4Xi) of the Act. The Appellate Authority on an re-appraisal of the relevant materials came to the conclusion that the bonafide need set up by the landlord was established and the order for eviction under S.11(3) of the Act was justified. The Appellate Authority also held that the rent was kept in arrears by the tenant and hence the older for eviction under S.11(2) of the Act was also proper. Thus the Appellate Authority dismissed the appeal filed by George the alleged sub-tenant. C.R.P. 919 of 1992 is filed by George challenging the order for eviction. 2. Meanwhile the landlord filed a suit for a declaration that the landlord is entitled to withdraw or receive the amount of Rs. 23206 lying in deposit in R.C.P. 76 of 1987 giving rise to C.R.R 919 of 1992 and for recovery of Rs. C.R.P. 919 of 1992 is filed by George challenging the order for eviction. 2. Meanwhile the landlord filed a suit for a declaration that the landlord is entitled to withdraw or receive the amount of Rs. 23206 lying in deposit in R.C.P. 76 of 1987 giving rise to C.R.R 919 of 1992 and for recovery of Rs. 2000 per month from the second defendant in that suit George as compensation for use and occupation for the period from 1.10.1991 till delivery of possession of the building to him and for recovery of an amount of Rs. 72,000/- being the compensation for use and occupation for the period of three years from 1.10.1988 till 1.10.1991 to be recovered from George the person who was using the building though he had no status as a tenant under the landlord. George resisted that suit essentially contending that he was the tenant of the building and not a sub tenant and he was only liable for rent and not for compensation .fur use and occupation. The trial court though it declined the prayer for declaration sought for, granted a decree to the landlord for recovery of the sum of Rs. 72,000/-with interest thereon and also for compensation for use and occupation at Rs. 2000/- per month from the date of suit till recovery of possession from George and providing that the realisation of the amount of Rs. 23206 lying in deposit in RLC-P. 76 of 1987 will abide by the orders to be passed in C.R.P. 919 of 1992. It is this decree mat is challenged by the legal representatives of George in A.S.625 of 2000. When A.S.625 of 2000 came up for admission, the learned judge ordered that the Appeal* be posted with the Revision since the result of the appeal would obviously depend upon the result of the Revision. Thai is how both the matters have come up before us. 3. Before us learned counsel for George contended that this was really a case where the lease was a joint lease in favour of Thankappan and George and hence the finding the Thankappan was the tenant and George was a sub-tenant or a transferee of the right of Thankappan was not justified. Counsel pointed out that even though Ext. A1 lease deed dr. Counsel pointed out that even though Ext. A1 lease deed dr. 3.2.1970 was executed by Thankappan and on the terms of that document the building was let out to Thankappan for the running of an institution, It could be seen that the said institute is an institute personally ran by George and that Thankappan himself had no education qualification to run such an institute. It was submitted that even though George was not a party to the deed Ext. A1, it was a case where George was a joint tenant with Thankappan. This contention raised on behalf of George was dealt with and repelled by the Rent Control Court and the Appellate Authority on a proper appreciation of the pleadings and the evidence in the case. The documents produced by George only show that George was the Principal of the institute. Moreover whereas the letting was 00 3.2.1970, we get a reference to George for the first time only in a communication dated 23.6.. 1970, three months after the letting »d in that George is described only as the. Principal of the institute. Though it may be possible to lead parol evidence to show that the person who is described as the tenant in a document is not really the tenant but the tenancy was with someone else, it appears to us doubtful whether it could be established by oral evidence that the tenancy in favour of the person who has, executed the written Instrument was. a joint tenancy of the executee and another person. It is not necessary to go into that question for the purpose of this case since on the materials, it is; clear that George has not shown that he was anywhere in the picture when the lease was granted to Thankappan. The Rent Coated Court and the Appellate Authority have found a proper appreciation of the pleadings and the evidence in the case that the building was. let to Thankappan and it was not a ease of a joint tenancy. In fact, a reference to the relevant material shows that the lease was granted by the landlord only to Thankappan so as to. enable him to run an institute in the petition schedule building. let to Thankappan and it was not a ease of a joint tenancy. In fact, a reference to the relevant material shows that the lease was granted by the landlord only to Thankappan so as to. enable him to run an institute in the petition schedule building. We have therefore no hesitation in holding that George is may a sub-tenant of the building at best a transferee of the right of the tenant without the consent of the landlord. In either case, the landlord is entitled to an order for eviction under S.11(4)(i) of the Act. The decision of the Rent Control Court and the Appellate Authority in that behalf does not call for any interference. 4. Learned counsel for George contended that this was a ease in which an order for eviction under sub¬ss.(1) to {10) of S.11 of the Act could art be passed in view of S.11(11) of the Act. According to learned counsel, the institute run by George was an educational institution recognised by Government, that the building was let out for use as an educational institution and was being actually used as an educational institution. According to counsel in view of S.11(11) of the Act and the non-obstante clause contained therein preventing the passing of an order for eviction notwithstanding anything contained in sub-ss.1 to 10 of S.11 of the Act, even an application. for eviction under S.11(2) or 11(3) or 11(4) (i) of the Act was not maintainable. Learned counsel raised, an interesting argument that since the non-obstante clause in S.11(11) covers even S.11(1) of the Act, the only remedy available to the landlord in a case covered! by S.11( II) of the Act is to file a suit for getting possession; of the building after due termination of the tenancy in terms of S.106 of the Transfer of Property Act. According to counsel the bar of filing a suit for eviction or executing a decree for eviction is created only by S.11(1) of the Act and since the non obstante clause in S.11(11) of the Act covers 3. IT: (I), of the Act as well, this will be the legal position. We do not think than it is necessary for us to decide this question in this case. But we must say that the argument raised by counsel in that behalf may require a deeper scrutiny in an appropriate case. 5. IT: (I), of the Act as well, this will be the legal position. We do not think than it is necessary for us to decide this question in this case. But we must say that the argument raised by counsel in that behalf may require a deeper scrutiny in an appropriate case. 5. Here, George did not plead the bar of S. I I(11) of the Act in the original objection filed by him. But during the course of the proceeding in the Rent Control Court George filed a belated application LA. 4620 of 1990 seeking to file an additional objection and seeking to Braise the contention based on S.11(11} of the Act. According to George he was running an educational institution in the building and the educational institution was a recognized one and the lease was for the purpose of the educational institution and hence no order for eviction could be passed. It appears that this petition I.A. 4620 of 1990 was., not property pursued before the Rent Control Court at the appropriate time.. This led to the Rent Control Court disposing of that application along with the main Rent Control Petition. In the order in the Rent Control Petition this aspect was not dealt with obviously because this aspect was not argued. The application LA. 4620 of 1990 was also dismissed along with the disposal of the Rent Control Petition. The point that was urged on behalf of George and that was considered was whether this was a case where there had come into existence a joint tenancy in favour of both Thankappan and George and whether George could be considered to be only a sub tenant. It was answering that issue and considering the other circumstances that arose that the Rent Control Court ordered eviction. George filed the appeal before the Appellate Authority. Before the Appellate Authority also it is not seen that this, question was argued in the manner in which it was sought to be argued before us.. The Appellate Authority also held on an appreciation of the relevant evidence and the circumstances which indicated that George came into the picture only sometime after the letting that the original letting was not a joint letting to Thankappan and George but that George was only a sub tenant under Thankappan or was only a person who was let into possession by Thankappan. The Appellate Authority also considered the case of George that there was a partnership between him and Thankappan and found that there was no such partnership which would justify the refusal of an order for eviction under S.11(4)(i) -of the Act. Thereafter on a reappraisal of the relevant materials, the Appellate Authority also came to the conclusion that the. rent was in arrears, that the need set up by the landlord was bonafide and that an order was liable to be passed under S.11(4)(i) of the Act also. What was argued before the Appellate Authority as can be seen from paragraph 17 of the Appellate Authority was that the Rent Control Court had not passed an order in LA. 4620 of 1990. The Appellate Authority noticed that I. A. 4620 of 1990 was filed for amending the written statement only on 16.11.1990. The landlord filed an objection on 5. LI 991. The matter was, heard on 24J.1991 and the application was dismissed on 31.1.1991 and the contention that LA. 4620 of 1990 was not disposed of by the Rent Control Court was. not correct. What we mean to point out is that before the Appellate Authority it was not argued that the case was covered by S.11(11) of the Act and hence the order for eviction was not justified even apart from the question whether the plea was properly raised before the Rent Control Court or not. 6. We may also notice in this context that if George is only a sub tenant, it may not be open for him to challenge the claim for eviction under S.11 (2) or S.11(3) of the Act or to rely on any of the provisos to those sub-sections as has been held by this Court. It is also doubtful whether as a sub tenant George can rely on S.11(11) of the Act to raise a contention that the claim for eviction as against the tenant Thankappan should be dismissed on the basis of S.11(11) of the Act. Since we have held that the joint tenancy set up by George has not been established, the position would be that George would not be entitled to raise the objection based on S.11(11) of the Act. 7. Even otherwise, we are not satisfied that there is any merit in the contention based on S.11(11) of the Act. Since we have held that the joint tenancy set up by George has not been established, the position would be that George would not be entitled to raise the objection based on S.11(11) of the Act. 7. Even otherwise, we are not satisfied that there is any merit in the contention based on S.11(11) of the Act. What S.11(11) contemplates is the case of letting out of a building for use as an educational institution and the building being actually used as an educational institution, provided that, the institution had been recognised by the Government or any authority empowered by the Government in that behalf and a protection from eviction so long as the said recognition continues. On a true interpretation of the provision, it appears to us that to attract S.11(11) of the Act, it must be a case of a letting out for use of a recognised educational institution and the building being actually used for running the recognised educational institution. According to us, the proviso occurring in S.11(11 )(ii) would clearly lead to the conclusion that even at the time of letting, the tenant must be a person who is running a recognised educational institution or the tenant must be an institution that has been recognised. Therefore S.11(11) of the Act takes within its purview, only cases where the letting is' for use as a recognised educational institution and the building is actually used for that educational institution. Here, there is no case for George that on the day the building was let out to Thankappan under Ext. Al, any recognised educational institution was in existence. No doubt, the letting to Thankappan was for the use of an institute which may or may not be an educational institution and Thankappan might have used the building for the purpose of the institution. But there is no case that on the day the lease was granted to Thankappan the institution was a recognised institution. On that ground also we are of the view that S.11(11) of the Act has no application in the case on hand. 8. The documents relied on by George, namely Exts. B9 to Bll, only show that certain courses run by the institution were recognised. No evidence has been produced by George to show that the institution as such was a recognised institution within the meaning of S.11(11) of the Act. 8. The documents relied on by George, namely Exts. B9 to Bll, only show that certain courses run by the institution were recognised. No evidence has been produced by George to show that the institution as such was a recognised institution within the meaning of S.11(11) of the Act. It is pointed out by learned counsel for the landlord that the recognition of a course is different from the recognition of an institution. There is substance in that contention. No document has been produced by George to show that the institute for the purpose of which the building was taken on rent is a recognised institution within the meaning of S.11(11) of the Act. It is therefore not possible to accept the belated contention raised on behalf of George that the application for eviction should be thrown out on the ground that it is hit by S.11(11) of the Act. 9. Rent had not been paid as claimed by the landlord. There is no serious dispute about that. Probably the excuse was that there was dispute regarding the status of George and the landlord was not in a position to receive any rent from George. Whatever it be, since the rent was in arrears, the Rent Control Court and the Appellate Authority were justified in passing an order for eviction under S.11(2) of the Act. Obviously there was a notice under the proviso to S.11(2) of the Act and nothing could be made out to show that any interference with the order for eviction under S.11(2) of the Act was called for in this case. 10. The bonafide need put forward by the landlord is clearly established by the pleadings and the evidence of PW.1 the landlord read in the light of the evidence of PW.2 Thankappan and George rw1. The Rent Control Court and the Appellate Authority have properly appreciated the pleadings and the evidence in the case to come to the conclusion that the bonafide need set up by the landlord has been established. It has been shown that the son of the landlord for whose benefit eviction is sought is not dependent on the landlord. It has also not been shown that any other building was available for the landlord to start the business that the son of the landlord intended to start in the petition schedule building. It has been shown that the son of the landlord for whose benefit eviction is sought is not dependent on the landlord. It has also not been shown that any other building was available for the landlord to start the business that the son of the landlord intended to start in the petition schedule building. In any view it cannot certainly be said that any illegality, impropriety or irregularity has been committed by the Rent Control Court and the Appellate Authority in finding that a claim for eviction under S. 11(3) of the Act has been made out. The order for eviction under S.11(3) of the Act also does not call for any interference. 11. Thus on the whole we are satisfied that the order for eviction passed by the Rent Control Court and the Appellate Authority is fully justified in this case. We see no reason to interfere with that decision. 12. Now we will deal with A.S.625 of 2000 which has come up for admission. We have already held that George the predecessor of the appellants herein was only a sub tenant or a person to whom the tenant Thankappan had unauthorisedly transferred his right without the consent of the landlord or without being authorised by the rent deed. In that situation obviously there is no privity of contract between the landlord and George. It is in that context that the landlord sued for compensation for use and occupation against George since admittedly George had used the building without the consent of the landlord but as let in by Thankappan or permitted by Thankappan. In that situation, what the landlord is entitled to as against George is compensation for use and occupation. This is what is decreed by the trial court. The trial court has also made only a reasonable assessment of the compensation for use. The premises contain ten rooms. The relevant facts have been considered. In fact nothing serious could be argued against the quantum fixed by the trial court. The main contention sought to be raised in the appeal was only that George was a tenant along with Thankappan or that Ext. A1 created a joint tenancy. There is no material on the basis of which such a joint tenancy could be found. In fact nothing serious could be argued against the quantum fixed by the trial court. The main contention sought to be raised in the appeal was only that George was a tenant along with Thankappan or that Ext. A1 created a joint tenancy. There is no material on the basis of which such a joint tenancy could be found. In such a situation-, we see no ground to interfere with the finding that the landlord is entitled only to compensation for use and occupation against George. Thus we find no error in the judgment and decree passed by the trial court and there is no reason to admit the Appeal. 13. While decreeing the suit giving rise to A.S.625 of 2000, the trial court has noticed that the withdrawing of the amount deposited to the credit of R.C.P. 76 of 1987 would abide by the result of C.R.P. 919 of 1992 and as provided for in the order in C.R.P. 919 of 1992. Since the landlord is entitled to withdraw the amount on the basis of our finding, all that is necessary is to direct in C.R.P. 919 of 1992 that whatever amounts that are remaining in deposit in R.C.P. 76 of 1987 or in R.C.A. 20of 1991 as deposited by Thankappan or George can be withdrawn by the landlord, petitioner in R.C.P. 76 of 1987. 14. In the result, C.R.P. 919 of 1992 is dismissed and the landlord, first respondent therein is permitted to withdraw whatever amounts that are deposited in R.C.P 76 of 1987 and R.C.A. 30 of 1991 by way of arrears of rent, towards the amount due to him from George under the decree in O.S.3000 of 1991. The judgment and decree in O.S.300 of 1991 is confirmed and A.S.625 of 2000 is dismissed.