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2004 DIGILAW 402 (KER)

Valsakumar v. Supreme Financiers

2004-08-19

J.M.JAMES, K.S.RADHAKRISHNAN

body2004
Judgment :- K.S. Radhakrishnan, J. Would the continuance of the landlord as a partner of the sublessee firm amount to a positive act of consent to sublease the premises is the question that has come up for consideration in this case. 2. Landlords are the revision petitioners. Eviction was sought for under Sec. 11(2), 11(3) and 11(4) (i) of Act 2 of 1965. Rent Control Court dismissed the petition on all the grounds. Landlords took up the matter in appeal. Appellate Authority also dismissed the appeal. Hence this revision. 3. First respondent, stated to be a partnership firm by name “Supreme Financiers”, was inducted into the schedule building as per Ext. A1 rent deed dated 1.2.1983. Subsequently adjacent building was also built and handed over to the first respondent. The wall between the two rooms was demolished and the two rooms were being kept in the possession of the first respondent. Monthly rent of the building was Rs.500/-. Later upstair portion was constructed and the first respondent was inducted into the upstair portion also. First petitioner-landlord was working abroad. He wanted to come back to the native place and start a business in Hardware and paints. Landlord stated that he has no other suitable building of his own for starting the said business. Further landlord noticed that without his knowledge and consent first respondent has sublet the ground floor of the building to the second respondent, a partnership firm, “Supreme Trader”. Landlord came to know of the sublease only in October 1989. Consequently he issued a lawyer notice dated 7.7.1990 for terminating the tenancy with effect from 19.7.1990 and also wanted the premises to be surrendered for conducting a business of his own. 4. Tenant resisted the petition. It is pointed out that there is no bonafides in the plea of the landlord. The claim of the first petitioner-landlord that he wanted to come back to the native place and start a business of his own is only a ruse to evict the tenant. Further landlord is gainfully employed in Gulf countries and that his claim to start business in hardware and paints was not bonafide. Further it is also pointed out that after constructing the upstair portion of the building, Supreme Financiers was shifted to upstairs and the firm by name Supreme Traders has started functioning in the ground floor. In both the firms landlord was a partner. Further it is also pointed out that after constructing the upstair portion of the building, Supreme Financiers was shifted to upstairs and the firm by name Supreme Traders has started functioning in the ground floor. In both the firms landlord was a partner. Contention was raised that since landlord was a partner in the second respondent firm Supreme Traders there is no sublease and it was with the consent and knowledge of the landlord Supreme Traders occupied the groundfloor of the building. 5. On the side of the landlord first petitioner got himself examined as P.W.1 and produced documents marked as Exts. A1 to A15. Second respondent was examined as R.W.1. On the side of the tenant first respondent got himself examined as R.W.2. Managing Partner of the first respondent firm was examined as P.W.3. Documents marked as Exts. B1 to B13 were produced. Rent Control Court after considering the oral and documentary evidence came to the conclusion that the need urged by the landlord was not bonafide. Appellate Authority also came to the conclusion that there is no bonafide in the need urged by the landlord. If the landlord really wanted to start business he could have occupied another room which was surrendered subsequently, but was rented out. Further it was also noticed that the landlord is gainfully employed in Gulf countries for over 25 Years and that he has no intention to start business of his own. 6. We have gone through the oral evidence of P.W.1 and found to be very vague in his answers. He is uncertain about the business he is going to conduct in the petition schedule premises. Further he has also stated in his oral evidence that he has no idea about the proposed business as well. Apart from the oral evidence of the landlord he has not adduced any other independent evidence to show that the need urged is bonafide. Both the courts have concurrently found that the need urged is not bonafide and is only a ruse to evict the tenant. We have gone through the oral and documentary evidence. We find no illegality, irregularity or impropriety in the findings of the courts below under Sec. 11 (3) of the Act to be interfered with in our revisional jurisdiction. 7. We will now examine the claim of the landlord under Sec. 11(4) (i) of the Act. We have gone through the oral and documentary evidence. We find no illegality, irregularity or impropriety in the findings of the courts below under Sec. 11 (3) of the Act to be interfered with in our revisional jurisdiction. 7. We will now examine the claim of the landlord under Sec. 11(4) (i) of the Act. Ext.A1 rent deed does not permit the tenant to sublease the premises. The Supreme Court while considering the scope of Sec. 11 (4) (i) of Act 2 of 1965 in P.John Chandy v. John P.Thomas (2002 (5) S.C.C. 90), held as follows: “A perusal of the relevant provision as quoted above clearly indicates that the landlord can claim possession of the building from the tenant in case of subletting by the tenant without the consent of the landlord, in case the lease does not confer on the tenant a right to sublet. The provision provides for “Conferment” of right on the tenant to sublet the accommodation. That is to say, so as to be entitled to sublet, the tenant must be granted that right to do so, by the landlord, the expression “confer” is pointer to something done overtly and explicitly. The meaning of the word “confer” as indicated in the Law Lexicon by P. Ramanatha Aiyar 2nd Edn., Reprint 2000 at P. 381 means “to give”. “Conferring is an act of authority; … men in power confer;”. It is therefore clear that the conferring indicates some positive action in giving something, may be some right or privilege to another person. It is in this background that the word “consent” as occurring in clause (i) of sub-section (4) of Sec. 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 is to be seen. According to the said provision if the lease does not “Confer” a right on the tenant to sublet, he cannot do so without the consent of the landlord. If he does so after coming into force of the Act, he would be liable to be evicted and the possession be given to the landlord. On reading of the whole provision, proposition of implied consent, in such cases, would not be readily acceptable. The consent of the landlord should be in a positive way, clear-cut and without ambiguity since otherwise right to sublet is only to be conferred on the tenant by the landlord in the lease itself. On reading of the whole provision, proposition of implied consent, in such cases, would not be readily acceptable. The consent of the landlord should be in a positive way, clear-cut and without ambiguity since otherwise right to sublet is only to be conferred on the tenant by the landlord in the lease itself. It can reasonably be expected that a right which is otherwise to be conferred by having such a condition in the lease itself, consent, in absence thereof, preferably be in writing and in case it is not so, it is to be clear-cut without any ambiguity or shadow of doubt. The conduct of the landlord which has been mainly taken into account on the point of implied consent is his inaction for a long time despite the knowledge of the fact of subletting by the tenant to other persons. The period of 32 years as indicated by the Appellate Authority is incorrect as discussed earlier. Nonetheless it can be said that there has been inaction on the part of the landlord for some years if not 32 Years. But inaction in every case does not necessarily lead to an inference of implied consent or acquiescence”. The apex court in the above decision also examined the impact of its earlier decisions in Hiralal Kapur v. Prabhu Chaudhry (1988 (2) SCC 172) and Ram Saran v. Pyare Lal (1996 (11) SCC 728). The apex court held that even the fact of knowledge of possession of the sublessee and the acceptance of rent from the sublessee is not considered conclusive of an inference of consent for sub tenancy. The court held that no inference of authorized sub tenancy could be drawn nor inference of implied consent and further held that the landlord is not estopped from seeking eviction on the ground of unauthorized subletting. The court pointed out that the conduct of the landlord in accepting the rent from the sublessee is also of no consequence. The apex court ultimately concluded in John P. Chandy’s case, supra, that the consent as envisaged under Sec. 11(4) (i) of Act 2 of 1965 would mean consent with some positive act which may lead to inference of conferring right on the tenant to sublet the premises and mere inaction would not be sufficient to amount to implied consent on the part of the landlord. 8. 8. We may examine the facts of the present case on the basis of the principle laid down by the apex court. True, in this case Ext. A1 rent deed does not confer any power on the tenant to sublease the premises. It is the specific case of the landlord that Supreme Financiers, first respondent, has sublet the premises to Supreme Traders who is in occupation of the ground floor of the building. Landlord examined as P.W.1 deposed that Supreme Traders started functioning there from 1986 onwards and he sent Ext. A2 lawyers notice in the year 1990. He stated in his deposition that partners of Supreme Financiers started Supreme Traders in the ground floor without his knowledge. Further it has also come out in evidence that landlord himself was a partner of Supreme Traders, the sublessee firm. Since landlord himself is a partner of the sublessee firm we have to take that there is positive consent by the landlord and it is not a case of subletting the premises to the second respondent Supreme Traders, without consent or knowledge. In a case where there is a positive action by the landlord, by remaining as a partner of the sublessee firm one can infer consent on the part of the landlord in subletting the premise to the second respondent. Landlord has stated that he has subsequently ceased to be a partner of the firm, but no evidence is forthcoming as to when he ceased to be the partner of the sublessee firm. Even if the landlord ceases to be a partner of the sublessee firm, the continuance of the sublessee cannot be said to be unauthorized. It has also come out in evidence that the second respondent is managed by the landlord’s brother-in-law. 9. In the facts and circumstances of the case, we are of the view that there has been a positive consent on the part of the landlord for subletting the premises by the first respondent to the second respondent of which landlord is a partner. In such circumstances, we find no reason to take a different view from that of the Rent Control Court and the Appellate Authority under Sec. 11 (4) (i) also. The revision petition lacks merits and it is accordingly dismissed.