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2004 DIGILAW 159 (KER)

M. v. Vipinachandran VS N. G. Xavier

2004-04-02

K.S.RADHAKRISHNAN, PIUS C.KURIAKOSE

body2004
Judgment :- Radhakrishnan, J. Whether the non-receipt of a registered notice sent by the landlord intimating the tenant of the sublease under the proviso to section 11(4)(i) is fatal to the application filed by a landlord under section 11(4)(i) of the Act is the question that has come up for consideration in this case. 2. The building bearing door No.47/1476 belonging to the landlord was let out to the first respondent before the Rent Control Court on 1-1-1980 on a monthly rent of Rs.100/- on the strength of an oral lease. Contrary to the agreement first respondent sublet the building to the second respondent. Landlord came to know of the subletting. Consequently landlord sent a registered lawyer notice A1 in the address of the tenanted premises. Notice returned with endorsement “addressee out of India.” Copy of the notice was also sent to second respondent, sublessee. The same was received by the sublessee. First respondent failed to terminate the sublease, consequently landlord filed the rent control petition on 15-11-1988. Contention was raised by the respondents that since no proper notice was served on the first respondent the rent control petition filed under section 11(4)(i) is not maintainable. Sri.Vidyasagar, counsel appearing for the revision petitioner submitted that actual service of a registered notice on the first respondent is a pre-condition for invoking section 11(4)(i). Counsel submitted landlord is legally obliged to inform the lessee of the contravention of the terms of the lease and the statute gives 30 days to the tenant to terminate the sublease. Counsel submitted failure to intimate the contravention of the terms of the lease is fatal to the application preferred under section 11(4)(i). Sri. Sreelal Warier counsel appearing for the landlord submitted notice was correctly addressed and sent by registered post acknowledgment due and the failure to receive the notice by itself would indicate that the tenant in not in occupation of tenanted premises but the subtenant. 3. It is a rule of law that if there is a lessee and lessee has created sublease or any other legal interest, then if the lessee has created sublease or any other legal interest, then if the lease is forfeited, the lessee or the person who claims under the lessee, loses his estate as well as the lessee him self. It is a rule of law that if there is a lessee and lessee has created sublease or any other legal interest, then if the lessee has created sublease or any other legal interest, then if the lease is forfeited, the lessee or the person who claims under the lessee, loses his estate as well as the lessee him self. The normal rule is that lessee is not expected to sublease the premises unless he is authorised or there is acquiescence on the part of the lessor. Burden is always on the lessee to show that the lessor has consented to the sublease or acquiesced. The burden will be heavy if the lease is an oral lease. So far as this case is concerned no evidence has been adduced by the first respondent to show that the landlord had either consented to the sublease or there is an agreement permitting the lessee to sublease the premises. We shall now examine whether non-receipt of the notice by the tenant by itself would be a sufficient ground to reject the petition under section 11(4)(i). For easy reference we may extract the relevant portion of section 11(4)(i). “(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: Provided that an application under this clause shall not be made for the first time in respect of one and the same tenancy 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 sub-lease, as the case may be, within thirty days of the receipt of the notice or the refusal thereof.” The proviso to the above mentioned provision mandates the landlord to send a registered notice to the tenant intimating the contravention of the condition of the lease. Landlord has sent the registered notice to the tenant intimating the contravention in the address of the premises where the tenant is conducting the business. Notice returned with the endorsement “addressee out of India”. Landlord has sent the registered notice to the tenant intimating the contravention in the address of the premises where the tenant is conducting the business. Notice returned with the endorsement “addressee out of India”. Landlord also sent a copy of the notice to the sublessee, the second respondent who has received the notice. For the purpose of first proviso to section 11(4)(i) it is to be presumed that the notice has been properly addressed and sent in the correct address by registered post acknowledgment due. In this connection we may refer to the decision of the Apex Court in M/s. Madan & Co. v. Wazir Jaivir Chand, (1989)1 SCC 264. The Apex Court was dealing with the provisions of the Jammu and Kashmir Houses & Shops Rent Control Act, 1966. The proviso to Section 1(1)(i) of the J & K Houses and Shops Rent Control Act insists that before any amount of rent can be said to be in arrears, a notice has to be served through post. The proviso provides only this method of service. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. Contention was raised before the Apex Court that if service could not be effected the provisions of Order V of the CPC. could be resorted to and notice be served accordingly. Rejecting the contention the Apex Court held as follows: “We are of the opinion that the conclusion arrived at by the courts below is correct and should be upheld. It is true that the proviso to clause (i) of Section 11(1) and the proviso to Section 12(3) are intended for the protection of tenant. Nevertheless it will easy to see that too strict and literal a compliance of their language would be impractical and unworkable. The proviso insist that before any amount of rent can be said to be in arrears, a notice has to be served through post. All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant’s correct address. Once he does this and the letter is delivered to the post office, he has no control over it. All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant’s correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under Section 27 of the General Clauses Act …. ….. ….. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a court under Order V of the CPC …. … … … .. .. But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee’s own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone or to deliver them to some other person authorised by him. In this situation, we have to choose the more reasonable, effective, equitable and practical interpretation and that would be to read the word “served” as “sent by post”, correctly and properly addressed to the tenant, ands the word “receipt” as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant.” On facts we are inclined to follow the above principle laid down by the Apex Court. In the instant case the landlord has sent the notice by registered post acknowledgment due to both the respondents. Notice to first respondent returned with the endorsement “addressee left India”. Second respondent sublessee has received the notice. Landlord’s responsibility cannot be equated with the responsibility of serving notice under Order V of the CPC. In the instant case the landlord has sent the notice by registered post acknowledgment due to both the respondents. Notice to first respondent returned with the endorsement “addressee left India”. Second respondent sublessee has received the notice. Landlord’s responsibility cannot be equated with the responsibility of serving notice under Order V of the CPC. Landlord cannot be equated with a plaintiff in a civil suit and follow the cumbersome procedure of going after the defendant adopting the procedure of affixture or taking notice by paper publication etc. Landlord need only sent the registered notice with acknowledgment due in the correct address, that is, normally in the address of the tenanted premises. Failure to receive notice would lead to the conclusion that either the tenant has ceased to occupy the premises or that he has ceased to occupy the premises or that he has ceased control of the premises. So far as this case is concerned it is all the more so since the sublessee has received the notice. The petition filed under section 11(4)(i) cannot therefore be rejected on the ground that the tenant has not received the notice. We are therefore not inclined to dismiss the application on the ground that first respondent has not received notice sent under the proviso to section 11(4)(i). 4. We may now examine on facts whether the landlord is entitled to succeed under section 11(4)(i). Contention was raised by Sri. Vidyasagar that though Ext.A2 is dated 8-10-88 rent control petition was filed on 15-11-1988, consequently there is delay in filing the petition and that the landlord has failed to establish the factum of sublease continued on the date of the petition. We find it difficult to accept the contention of the counsel. In a petition under section 11(4)(i) the landlord need only to show that the sublessee is in possession of the tenanted premises. Tenant is given an opportunity to set right the contravention by terminating the sublease with the statutory period. If the tenant fails to terminate the sublease within the statutory period the mere fact that there was delay in filing the rent control petition is of no consequence. Tenant cannot be heard to contend that subletting must continue as on the date of the petition for maintaining a petition under section 11(4)(i) of the Act. If the tenant fails to terminate the sublease within the statutory period the mere fact that there was delay in filing the rent control petition is of no consequence. Tenant cannot be heard to contend that subletting must continue as on the date of the petition for maintaining a petition under section 11(4)(i) of the Act. We may in this connection refer to the decision of the Apex Court in Gajanan v. S.H.Patel, AIR 1975 SC 2156. Apex Court was dealing with the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947). Section 13(1)(e) of the Act is the relevant provision which came up for consideration before the Apex Court. Interpreting the said provision Apex Court held as follows: “The language is that if the tenant has sublet, the protection ceases. To accede to the contention of the appellant would mean that a tenant would not be within the mischief of unlawful subletting if after the landlord gives a notice terminating the tenancy on the ground of unlawful subletting the sub-tenant vacates. The landlord will not be able to get any relief against the tenant in spite of unlawful subletting. In that way the tenant can foil the attempt of landlord to obtain possession of the premises on the ground of subletting every time by getting the subtenant to vacate the premises. The tenant’s liability to eviction arises once the fact of the notice, if it is proved that there was unlawful subletting, the tenant is liable to be evicted.” In this case on facts Rent Control Court and Appellate Authority have concurrently found that first respondent has sublet the premises to second respondent and he is continuing in possession. We find no illegality irregularity or impropriety in the finding rendered by the Rent Control Court. 5. Counsel appearing for the landlord submitted that the evidence adduced in this case would show that first respondent has no control over the business since he is out of India and the business is actually conducted by the second respondent. Though landlord is not in a position to establish the clandestine arrangements between the respondents landlord is expected only to establish the presence of second respondent in the premises with whom landlord has no jural relationship. Burden is entirely on the tenant to establish the jural relationship between him and the sublessee. Though landlord is not in a position to establish the clandestine arrangements between the respondents landlord is expected only to establish the presence of second respondent in the premises with whom landlord has no jural relationship. Burden is entirely on the tenant to establish the jural relationship between him and the sublessee. We may in this connection refer the decision of the Apex Court in Bharat Sales Ltd. v. Life Insurance Corporation of India, (1998) 3 SCC 1 wherein the Apex Court was dealing with section 14(1) (b) of the Delhi Rent Control Act. It is appropriate to refer the dictum laid down by the Apex Court which reads as follows: “Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment or rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let.” The above being the factual and legal position we find no reason to upset the findings of the court below and answer the legal question infavour of the landlord. Revision lacks merits and is dismissed accordingly.