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O.K Gopi v. T.F Joseph And Others
Factual and Procedural Background
The landlord sought eviction under Section 11(4)(i) of Act 2 of 1965 alleging that the tenant, who held the lease dated 14-1-1968 (Ext. A1) for premises let for radio repair work, had sublet the premises without the landlord's consent to a person named Inasu. The lease originally provided for a monthly rent of Rs. 30/-, later enhanced to Rs. 60/-. The landlord sent a registered notice under the proviso to Section 11(4)(i) through his advocate; the notice specified the alleged contravention but the advocate did not sign the document. The tenant received the registered notice but did not respond within the statutory period.
On the facts, evidence was led by both sides: the landlord produced PWs.1 and 2 and documents Exts. A1–A5; the respondent (tenant) examined RWs.1–3 and produced Exts. B1–B12. A commission report (C1) inspected the premises and found Inasu present; the landlord's evidence suggested Inasu was in exclusive occupation. The tenant contended Inasu was an employee/instructor and not conducting business in the premises. The Appellate Authority found for the landlord. The revision before this Court was dismissed, subject to giving the tenant time to vacate with certain conditions.
Legal Issues Presented
- Whether failure to sign a registered notice intimating contravention of lease conditions under the proviso to Section 11(4)(i) of Act 2 of 1965 renders an eviction petition under Section 11(4)(i) non‑maintainable.
- Whether, on the evidence, the tenant had sublet the premises (to Inasu) in contravention of the lease so as to warrant an eviction order under Section 11(4)(i).
Arguments of the Parties
Tenant's Arguments
- Counsel for the tenant argued that a registered notice must be signed by the landlord or his representative; absence of such signature means the proviso's requirement was not satisfied and therefore there was no proper notice under Section 11(4)(i), rendering the petition not maintainable.
- The tenant also pleaded that Inasu was merely an instructor employed by him and not conducting any business in the scheduled premises, thereby denying an objectionable sublease.
Landlord's Arguments
- Counsel for the landlord (Sri P.C. Chacko) submitted that the statute requires only that a registered notice be sent and that failure of the advocate to sign does not render the notice defective; the landlord had entrusted the matter to his lawyer who sent the notice on the landlord's letterhead, and the landlord should not be penalised for the advocate's omission.
- On the merits, the landlord argued (and produced evidence) that Inasu was in actual occupation and conducting the radio repair business, amounting to an unlawful subletting without consent.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Abdurehim Sait v. Sahul Hameed, 1981 Ker LT 289 | The opinion notes that a learned Judge of the Court had occasion to consider the same issue (i.e., matters concerning notice under the relevant provision). | Referred to as part of the authority considering the question of sufficiency of notice; formed part of the basis for holding that an unsigned advocate's notice was proper where no prejudice was caused to the tenant. |
| Rakesh Kumar v. Hindustan Everest Tool Ltd., (1988) 2 SCC 165: (AIR 1988 SC 976) | Noted in the opinion as another decision in which the issue had been considered. | Relied on along with Abdurehim Sait to support the Court's inclination that failure of the advocate to sign the registered notice does not automatically render the notice ineffective where no prejudice results. |
| Vialaparambil Gopi v. Chundamveettil Pazhaya Ottayil Mohammed Basheer & Anr., (2003) 3 KHCACJ 670: (2003 AIHC 4605) | Referenced for the principle relating to the allocation of burden of proof where subletting is alleged. | Applied to hold that the burden was on the tenant to show that there was no objectionable sublease; the Court found the tenant failed to discharge that burden. |
Court's Reasoning and Analysis
The Court began with statutory construction of Section 11(4)(i) and its proviso: the proviso requires the landlord to send a registered notice intimating the contravention, and the tenant then has thirty days from receipt to terminate the transfer or sublease to avoid eviction proceedings.
The Court observed that in the present case a registered notice was sent, the contravention was specifically mentioned, and the only defect was the advocate's failure to sign the notice. The Court explained the legal notion of "notice" as information actually communicated through an authorised person, regarded as equivalent to knowledge of its legal consequences. The Court emphasized that the purpose of the proviso is to give intimation to the tenant of the contravention so the tenant can act within thirty days; here the tenant received the registered notice and was thereby alerted.
Relying on earlier decisions (Abdurehim Sait and Rakesh Kumar), the Court held that where no prejudice has been caused to the tenant by the absence of the advocate's signature, the notice remains a proper notice under the proviso and the petition under Section 11(4)(i) is maintainable.
On the substantive issue of unlawful subletting, the Court reviewed the evidence: the landlord's proofs (Exts. A1–A5, PWs.), the commissioner's report (C1) showing Inasu present at inspection, and the tenant's failure to produce contemporaneous documents (muster roll or earlier records) to substantiate the claim that Inasu was only an employee. The Court found that documents produced by the tenant were largely subsequent to institution of the petition and that physical dimensions of the premises (as per RW2) made the tenant's explanation improbable. Weighing the material, the Court agreed with the Appellate Authority that Inasu was in actual occupation and that the tenant had sublet the premises without consent. The Court applied the principle (as articulated in Vialaparambil Gopi) that the burden lies on the tenant to show absence of objectionable subletting; the tenant failed to discharge this burden.
Holding and Implications
Holding: The Court held that the unsigned registered notice (unsigned by the advocate) under the proviso to Section 11(4)(i) was nevertheless a proper notice because no prejudice was caused to the tenant, and accordingly the petition under Section 11(4)(i) was maintainable. On the merits, the Court held that the landlord was entitled to eviction under Section 11(4)(i). The revision was dismissed.
Implications:
- The direct effect is that the tenant's revision was dismissed and the landlord's entitlement to eviction under Section 11(4)(i) was affirmed.
- The Court granted the tenant time until 30-6-2004 to vacate, conditional on the tenant filing an undertaking within one month to vacate by that date and to pay any arrears and future rent; these were the immediate operative consequences for the parties.
- The opinion bases its decision on the absence of prejudice from the procedural defect (lack of advocate's signature); the Court did not indicate that it was laying down a broader new precedent beyond its application to these facts.
Revision dismissed.
Radhakrishnan, J.:— The question that has come up for consideration in this case is whether failure to sign a registered notice intimating contravention of the conditions of lease under Section 11(4)(i) of Act 2 of 1965 would render an application for eviction non-maintainable.
2. Section 11(4)(i) of the Act enables the landlord to apply to Rent Control Court for an order directing the tenant to put the landlord in possession of the building if the tenant after commencement of Act 2 of 1965 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. The proviso to the said section obliges the landlord to send a registered notice to the tenant intimating the contravention of the condition of the lease if he seeks an order of eviction under Section 11(4)(i) and within thirty days of the receipt of notice of the contravention the tenant could terminate the transfer or sublease and defend a petition filed by the landlord under Section 11(4)(i). In the instant case the registered notice was sent by the landlord through his advocate, but the advocate failed to put his signature in the notice, consequently the tenant did not respond though received the notice.
2. Counsel for the tenant also submitted a registered notice signed by the landlord or his representative is a mandatory requirement and since the said requirement has not been satisfied there is no proper notice under the proviso to section 11(4)(i) and therefore the petition filed under Section 11(4)(i) is not maintainable. Counsel appearing for the landlord Sri P.C Chacko submitted the statute contemplates only a registered notice and failure to sign would not render the notice defective. The landlord need only intimate the contravention through a registered notice and on receipt of that notice if the tenant fails to terminate the transfer or sub-lease the landlord will have a cause of action under Section 11(4)(i). Counsel submitted landlord had entrusted the matter to his lawyer who sent a notice in his letterhead, but advocate failed to sign the notice and therefore the landlord cannot be penalised.
3. The notice sent was a registered notice, the contravention of the conditions of lease has been specifically mentioned, and the only defect was that the lawyer failed to sign the notice. The word “notice” in its legal sense may be defined as information concerning a fact actually communicated to a party through an authorised person, which information is regarded as equivalent to knowledge of its legal consequence. As per statute if the tenant sublets the premises without the consent of the landlord it is objectionable, so also if the tenant transfers his rights under the lease to any other person is also objectionable. The purpose and object of the proviso is only an intimation to the tenant of the contravention of the conditions of the lease. Tenant has been alerted of the contravention. In order to avoid an order of eviction it is necessary to terminate the transfer or sublease within thirty days of the receipt of the notice or refusal thereof. A learned Judge of this Court had occasion to consider the issue in Abdurehim Sait v. Sahul Hameed, 1981 Ker LT 289 and in Rakesh Kumar v. Hindustan Everest Tool Ltd., (1988) 2 SCC 165: (AIR 1988 SC 976). In view of the above mentioned reasons we are inclined to hold that though an advocate has failed to sign in the lawyer notice sent under the proviso to Section 11(4)(i) since no prejudice has been caused to the tenant, the notice is a proper notice. Hence the petition under Section 11(4)(i) is maintainable.
4. The building was rented out to the original tenant vide Ext. A1 lease deed dated 14-1-1968 on a monthly rent of Rs. 30/- which was enhanced to Rs. 60. Tenant was conducting radio repair work under the name and style “O.K Radio Rapairing Institute”. But in violation of the terms of rent deed and without the consent of the landlord the tenant has sublet the premises to one Inasu. Tenant resisted the petition contending that Inasu is an instructor employed by him and Inasu is not conducting any business in the schedule premises. Evidence consists of the testimony of PWs. 1 and 2 and documents marked as Exts. A1 to A5 on the side of the petitioner. Respondent examined RWs. 1 to 3 and marked Exts. B1 to B12 documents on his side. C1 is the commission report. Landlord has established in this case the presence of Inasu. Burden is on the tenant to show that there has not been any objectionable sublease. Reference may be made to the decision in Vialaparambil Gopi v. Chundamveettil Pazhaya Ottayil Mohammed Basheer & Anr., (2003) 3 KHCACJ 670: (2003 AIHC 4605). So far as this case is concerned in our view the tenant failed to establish the jural relationship between him and Inasu. Landlord was examined as PW 1. He has specifically stated that the tenant has ceased to occupy the tenanted premises and he is conducting an institute having an area of more than 2000 sq. feet. The specific case of the landlord is that Inasu is conducting the radio repair business and he is in exclusive possession. Landlord PW-1 had produced Ext. A5 document which is an extract of the property tax register maintained by the local authority for the period 1988-93. The said document would show that the occupant of the premises is Inasu. Commission was taken out. C1 is the commission report. When the commissioner inspected the premises the original tenant was not present, but Inasu was present. The tenant failed to produce any document to show that Inasu was not conducting the business prior to the issuance of notice to the tenant. On the other hand, B6, B7 series and B8 and B12 documents produced by the tenant are all subsequent to the institution of the petition. RW 1 has stated that Inasu was employed by him from 1981 onwards and no objection was raised by the landlord, in the event of which he should have produced the muster roll and other relevant records of previous years. No document has been produced. Going by the evidence adduced by RW 2 Insau the dimension of the tenanted premises is only 8 × 7 feet. It is difficult to believe that the tenant is used to conduct practical training for his students in that area. Admittedly he has started training institute in an area of 2000 sq. feet. All these facts would indicate that Inasu was in actual occupation of the premises. Under such circumstance we are in agreement with the Appellate Authority that the landlord is entitled to get eviction under Section 11(4)(i) of the Act.
5. Consequently revision lacks merits and the same is dismissed. However, in the facts and circumstances of the case we are inclined to grant time to the tenant up to 30-6-2004 for vacating the premises on condition that he would file an undertaking before the Rent Control Court within one month that he would vacate the premises within the aforesaid time and that he would pay arrears of rent if any, and also future rent.
Revision dismissed.
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