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2008 DIGILAW 439 (KAR)

Devakiammal v. Natarajan

2008-08-25

SUBHASH B.ADI

body2008
Judgment :- (This H.R.R.P. is filled under Section 46(1) of Karnataka Rent Act against the order dated 05.01.2006 passed in HRC. No. 254/2004 on the file of the II Addl. Small Causes judge, Bangalore, Dismissing the petition U/s. 27(2)(j)(r) and 31 of KR Act for eviction.) This Revision is directed against the order in H.R.C.No.254/2004 dated 5th January 2006 on the file of II Additional Small causes Judge, Bangalore. 2. Petitioner had filed a petition under Section 27 sub-section (2) clauses (j) and (r) and section 31 of the Karnataka Rent Act 1999 (hereinafter referred to as ‘the Act’) claiming that, she is a landlord of non-residential premises measuring 8.5 feet x 6.5 feet and alleged that, the husband of the petitioner had taken the said premises on lease from the lessor with a consent to sublet. The respondent is sub-lessee under the petitioner on monthly rent of Rs.400/-. Petitioner sought for eviction of the respondent on the ground that, her son is running a hotel in the adjacent portion and he requires the premises for expansion of his business and he is facing inconvenience in doing the business on account of lack of adequate space. Though the petitioner approached respondent for several times for vacating the premises, he did not heed to her request. Though the respondent was served before the trial court, he remained unrepresented and he was placed exparte. 3. In support of the case of the petitioner, petitioner got herself examined as PW-1 and also produced Exs.P1 to P9. The trial court dismissed the eviction petition only on the ground that, the petitioner’s husband being the lessee, he cannot come within the definition of the ‘landlord’ and the eviction petition is not maintainable. In this regard, the trial court referred to the definitions of Section 3(h) and (r) of the Karnataka Rent Control Act and held that, the definition of ‘landlord’ appeared in Section 3 clause (h) of the Rent Control Act did include the sub-tenant. However, the word, tenant of sub-tenant, is omitted in the definition of ‘landlord’ under Section 3 clause (e) of the Act. On the interpretation of the definition of ‘landlord’ in both the Acts, the trial court held that the petitioner cannot be a landlord within the meaning of definition of ‘landlord’. .4. However, the word, tenant of sub-tenant, is omitted in the definition of ‘landlord’ under Section 3 clause (e) of the Act. On the interpretation of the definition of ‘landlord’ in both the Acts, the trial court held that the petitioner cannot be a landlord within the meaning of definition of ‘landlord’. .4. Learned Counsel for the petitioner submitted that, Section 3 clause (e) of the Act does not omit the sub-tenants. Though Section 3 clause (e) does not refer to tenant of sub-tenant, but it is an inclusive definition. He referred to the definition of ‘tenant’ under Section 3 clause (n) of the Act and submitted that, the tenant includes the sub-tenants and further submitted that, reading of both the definitions clearly indicates that, the landlord includes the tenant of the sub-tenant. In this regard he .also referred to Section 21(1)(h) of the Karnataka Rent Control Act and submitted that, the explanation under Section 21(4) specifically excludes a rent-farmer or rent-collector or estate-manager for the purpose of eviction of tenants under clause (h) of Section 21(1) of the Karnataka Rent Control Act. He further submitted that by reading of these provisions, it is clear that, the definition of ‘landlord’ under Section 2(e) of the Act has to be read in consonance with the definition of ‘tenant’ under Section 3(n) of the Act and harmonious construction of these two provision read with Section 27 do not exclude the lessee of sub-lessee, who has power to lease the premises and submitted that, for the purpose of eviction of sub-lessee, the lessee is landlord and it cannot be read otherwise. 5. Though the respondent is served in this revision petition has remained unrepresented. .6. Theonly question that arises for consideration is, .“As to whether the lessee of sub-lessee, who has right to lease, is the landlord of the sub-lessee or not , within the meaning of Section 3(e) of the Karnataka Rent Act 1999? 7. Facts, which are not in dispute in this case are that, the petitioner is a lessee. The lessor is one Nageshwara temple trust. The said Nageshwara temple trust had filed H.R.C.No.1402/1990 under section 21(1)(f) and (o) of the Karnataka Rent Control Act against the petitioner, interalia, alleging that the petitioner herein had sublet the premises, the said HRC came to be dismissed with an observation that the petitioner herein though is a lessee has a right to sublease. The said Nageshwara temple trust had filed H.R.C.No.1402/1990 under section 21(1)(f) and (o) of the Karnataka Rent Control Act against the petitioner, interalia, alleging that the petitioner herein had sublet the premises, the said HRC came to be dismissed with an observation that the petitioner herein though is a lessee has a right to sublease. The relationship between the petitioner and the respondent as a lessee and sub-lessee is not contested by the respondent and it has also come on record that, the lessor of the petitioner had failed to prove that the sub-lease to the respondent by the petitioner is in violation of Section 21(1)(f) of the Karnataka Rent Control Act. These facts do show that the petitioner-lessee has a right to sub-lease the premises. 8. These facts do show that the petitioner-lessee has a right to sub-lease the premises. 8. Section 3 clause (h) of the Karnataka Rent Control Act defines ‘landlord’ as under: (h) “landlord” means any person who is for the time being receiving or entitled to receive, rent in respect of any premises whether on his own account or on account or on behalf, or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant; and includes any person not being a tenant who from time to time derives title under a landlord; and further includes in respect of his sub-tenant a tenant who has sub-let any premises” (underlined by me) The definition of ‘tenant’ as defined under Section 3(r) of the said Act reads as under: (r)”tenant” means any person by whom or on whose account rent is payable for a premises and includes the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant’s family upto to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a premises by its tenant or a person to whom the collection or rents or fees in a public market, cart-stand or slaughter house or of rents for shops has been framed out or leased by a local authority.” Under the Karnataka Rent Act 1999, the ‘landlord’ is defined under Section 3(e), which reads as under: (e) “landlord” means a person who for the time being is receiving or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or to be entitled to receive the rent, if the premises were let to a tenant”. The ‘tenant’ under Act is defined under Section 3(n), which reads as under: .(n) “tenant” means any person by whom or on whose account or behalf the rent of any premises, is or but for a special contract would be, payable, and includes,- .(i) a sub-tenant; .(ii) any person continuing in possession after the termination of his tenancy, but does not include any person to whom a license as defined in section 52 of the Indian Easements Act, 1882 (Central Act 5 of 1882) has been granted”. 9. The definition of ‘tenant’ under Section 3(n) of the Act includes the sub-tenant. The definition of the ‘landlord’ is not restricted only to the owner of the premises, but also the person, who for the time being, is receiving or who is entitled to receive the rent of any premises. It is not in dispute that, the petitioner herein is receiving the rent of the premises from the sub-tenant. The Karnataka Rent Control Act provided for control of rents and eviction, for leasing of buildings, to control rates of hotels and lodging, housing and certain other premises did include the tenant of a sub-tenant as a sub-tenant as a landlord and the only restriction imposed on rent-collectors or rent-farmers or estate managers, from seeking eviction of tenants under Section 21(1)(h) of the Karnataka Rent Control Act, even though they were included in the definition of ‘landlord’. 10. The object of the Rent Act is intended to balance the interest of both the landlord and tenant and also stimulates future construction. Protection is given only in respect of certain tenants under the Act. Tenants of residential house of which the rent is less than Rs.3,500/- per month in an area covered under the Karnataka Municipal Corporation Act and Rs.2,000/- in respect of any other area and commercial building having an area not exceeding 14 square meters, were only protected. Under the Karnataka Rent Control Act, larger protection and control was provided to the tenants. The landlord’s right is to seek eviction was restricted. However, the Karnataka Rent Act liberalized the rights of the landlords, the protection of the tenants from eviction was also restricted, such as, if the building is not more than 15 years old, rent of residential premises is less than Rs.3,500/- or Rs,2.000/- per month, as the case may be. The landlord’s right is to seek eviction was restricted. However, the Karnataka Rent Act liberalized the rights of the landlords, the protection of the tenants from eviction was also restricted, such as, if the building is not more than 15 years old, rent of residential premises is less than Rs.3,500/- or Rs,2.000/- per month, as the case may be. The landlord’s right to seek eviction of tenant is made liberal. The Act has balanced the interest of the landlord and tenant. The definition of ‘tenant’ includes the sub-tenant, the harmonious reading of the definition of tenant and landlord appearing under clause (e) and (n) of Section 3 of the Act shows the intention to include the lessee, who has right to lease the premises, within the meaning of definition of ‘landlord’ for the purpose of eviction of the sub-lessee. Section 27 sub-section (1) of the Act reads as under: “27. Protection of tenants against eviction :- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by the Court, District Judge or High Court in favour of the landlord against a tenant, save as provided in sub-section(2)”. Though this section envisaged to protect the tenants against eviction, but if the landlords fulfills the requirement of sub-section (2) he is entitled for eviction of the tenant. If section 27 sub-section (1) is read in consonance with the definition of ‘landlord’ and ‘tenant’, it do indicate that the landlord can evict the tenant only if he fulfills the requirement under clauses of Section 2. If the sub-tenant who is tenant, as defined under Section 3(n) of the Act is to be evicted, necessarily for a sub-tenant the tenant of sub-tenant would come within the meaning of ‘landlord’. The intention and the purpose of the legislation is not to deny the right of tenant of sub-tenant under the contract of lease. Construction of provisions must sub-serve the purpose of the Act. The fact that the definition of ‘landlord’ in no way expressly excludes the lessee from the definition of ‘landlord’. When the definition of ‘landlord’ under the provisions of Karnataka Rent Control Act included the tenant of subtenant as landlord, it cannot be held that the tenant of sub-tenant is not landlord under the provisions of the Karnataka Rent Act. The fact that the definition of ‘landlord’ in no way expressly excludes the lessee from the definition of ‘landlord’. When the definition of ‘landlord’ under the provisions of Karnataka Rent Control Act included the tenant of subtenant as landlord, it cannot be held that the tenant of sub-tenant is not landlord under the provisions of the Karnataka Rent Act. In my opinion, the trial court was not justified in the matter of interpretation of the definition of ‘landlord’ and rejecting the petition of the petitioner on the ground that, she is not a landlord within the meaning of Section 3 clause (e) of the Act, if the lessee, who has right to lease and collect rent from the sub-lessee, such right cannot be treated as an empty formality without having further right to seek eviction. Since, the trial court has not considered the matter on merit, I feel that the matter requires consideration, on the question of requirement under section 27(2)(j) and (r) of the Act. Accordingly, the Revision Petition is allowed. The order of the trial court is set aside. The matter is remitted to the trial court to consider the case of the petitioner under section 27(2)(j) and (r) of the Act. The trial court is directed to dispose of the eviction petition as early as possible.