S.C Basappa v. Jumnadoss, Also Known At, Jumnadoss Manickchand

On two grounds, firstly that there was wilful default and secondly that there was subletting without authority, the petitioner, as landlord, filed an application against the principal tenant impleading also the alleged sub-tenant as a party. By the time the application for eviction came up for hearing, it is the common case that the alleged subtenant vacated. The principal tenant took up the position that there was no subletting at all without authority and he also denied that there was ever a wilful default. On the other hand, he pleaded that it was customary for the landlord to receive the rent once in two months and that such rents were sent by money order. The rents for the n on the of November and December, 1973 and January, 1974, which are subject-matter of the petition in question, were sent by money order in February, 1974, and received by the petitioner landlord on 9th February, 1974. In those circumstances, the principal tenant pleads that there was no design or a contumacious conduct on his part in having avoided payment of the rent as alleged and, therefore, pleaded that the application should be dismissed. The Rent Controller agreed with the landlord and directed eviction on both the grounds. The Appellate Authority, however, on the same subject, on a re-look by him, held that there was no such wilful default and no sub-letting as well and dismissed the application. The landlord has come up in revision as against the said order.

2. As regards the first question whether there was wilful default it is seen from Ex. P1 and P2 series that it was usual for the tenant to send rents once in two months and the landlord was receiving the same without demur Though a practice to that effect cannot be pleaded so as to escape a petition on the ground of wilful default, yet that particular circumstance in a particular case can certainly be a ground for the tenant to set up a case that there was no wilful or contumacious conduct on his part to avoid the payment of rent. But it was because of the laxity which was available to him by reason of the good sense of the landlord that he was sending the rents once in two months and the rents so sent by him were accepted without a demur or any objection by the landlord. The default should be such that it should be so conspicuous to a reasonable person that the tenant's attitude was nothing but supreme indifference and purposeful evasiveness resulting in his recalcitrance. Such is not the attitude of the tenant in the instant case. The court, therefore, rightly held that the petition is not sustainable on the ground that there was such wilful default.

3. The second ground of attack was that there was subletting. Mr. Rajagopala Iyengar fairly concedes that on the date when the application for eviction came up for hearing, the subtenant was not there physically. Therefore, the landlord was unable to sustain his ground under S. 10 (2) (ii) (a) of the Tamil Nadu Buildings (Lease and Rent Control) Act That section provides that a landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf and if the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has after the 23rd October, 1975, without the written consent of the landlord transferred his light under the lease or sublet the entire building or any portion thereof, if the lease does not confer on him any right to do so. The question is whether a past conduct on the part of the lessee when he sublet the building without authority, would still compel hum to suffer an order of eviction under the abovesaid section, if in given facts and circumstances of a case there was no such subletting or no sub-tenant physically in occupation of the demised permission the date when the petition comes up for hearing. Whatever may be the truth in the pleadings of a particular case, it is essential for the landlord, who seeks to secure possession under S. 10 (2) (ii) (a) of the Act, to show that on the date when he complains of subletting there is such subletting in praesenti and that it was provable as a physical fact. His suggestion and pleading that about the time when he came to court or sometime before he filed the petition there was such subletting by the tenant without authority, cannot avail him of the right to seek for eviction under the above section. If he wishes to establish that there was such subletting without authority, he should prove to the first court, namely, the Rent Controller, and thereafter at every stage when the proceeding is in seisin of the statutory authorities dealing with the subject-matter that such physical fact of subletting is in fact in existence and the subletting is, therefore, at the instance of the tenant and that too without authority. Therefore, a landlord on the mere fact that there was subletting of the premises cannot seek for an order under the above sub-section when he is unable to establish that there is any such physical and pragmatic act of subletting by the tenant without authority. In the instant case, as I said. Mr. Rajagopala Iyengar fairly conceded that on he date when the petition was taken up for hearing he was unable to establish that there was such subletting. The subletting cannot be a matter of surmise but such can only be the result of an actual investigation and adjudication and a resonant finding. I am of the view that no such finding can be rendered in the instant case, as there was no physical subletting at site. The petition has to tail on that ground also. The lower court, therefore, was right in having dismissed the petition. The Civil Revision Petition is, therefore, dismissed. There will be no order as to costs.

VCS