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Case Number
Advocates
  • K.P.Dandapani
  • K.K.Usha
  • T.R.G.Variyar
Judges
  • Honourable Mr. Sreedharan
Acts
  • act 1963 (kerala act 1 of 1964)
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • K.P.Dandapani
  • K.K.Usha
  • T.R.G.Variyar
Judges
  • Honourable Mr. Sreedharan
Acts
  • act 1963 (kerala act 1 of 1964)
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

Proceedings were initiated by the first respondent under the Kerala Buildings (Lease and Rent Control) Act ("the Act") to recover buildings bearing door nos. 2600 and 2602 in Ward No. 37 of Cochin Corporation from respondents 2 and 3 (the original tenants). The petitioners are sub-tenants in possession of the same buildings. Recovery was sought under sections 11(e), 11(4)(iii) and 11(5) of the Act.

The rent control court (ext. P2) found the landlord's asserted need for the premises to be reasonable, honest and genuine, and found that the tenants had constructed another building (plinth area of more than 2,000 sq. ft.) sufficient for their business requirements. The rent control court directed the tenants and the sub-tenants to surrender vacant possession under sections 11(e) and 11(4)(iii).

The original tenants appealed to the appellate authority (R.C.A. 83/84) and the sub-tenants appealed separately (R.C.A. 42/85). The appellate authority (ext. P5) dismissed those appeals. The tenants filed revision R.C.R.P. 111/86 and the sub-tenants filed R.C.R.P. 9/87; the district court (second additional district judge, Ernakulam) dismissed the revision petitions by a common order (ext. P6). The sub-tenants challenged ext. P6 in the present original petition.

The petition was instituted under Articles 226 and 227 of the Constitution, but the court proceeds to deal with it solely under Article 227 on the basis that the district court under section 20 of the Act functions as a civil court.

Legal Issues Presented

  1. Whether sub-tenants who occupy premises with the landlord's permission are entitled to the same protections and privileges as original tenants under the Act (including benefit of the second proviso to Section 11(e)).
  2. Whether the concurrent factual findings of the rent control court, the appellate authority and the district court (that the landlord's need was bona fide and that the tenants had another building sufficient for business) are open to interference in an original petition under Article 227.
  3. Whether a decree or order for eviction against a tenant binds sub-tenants who were not parties, and the legal effect of the inclusion or omission of sub-tenants in proceedings under Section 21 of the Act.
  4. Procedural jurisdictional question: whether the petition should be entertained under Article 226 (writ jurisdiction) or only under Article 227, given the district court's character as a civil court under section 20 of the Act.

Arguments of the Parties

Petitioners' Arguments

  • The petitioners (sub-tenants) occupied the premises with the landlord's permission (the lease permits sub-letting) and therefore should be treated as original tenants for purposes of protection under the Act.
  • As sub-tenants who came into possession with the landlord's consent, they are entitled to claim all protections available to original tenants, specifically the benefit of the second proviso to Section 11(e) (which permits a tenant to resist eviction if his livelihood depends on the trade carried on in the building and there is no suitable alternative in the locality).
  • The authorities below wrongly denied the petitioners the benefit of the second proviso, and the petitioners were not permitted to lead evidence to substantiate their rights under that proviso.
  • The fact that the original tenants possess another building sufficient for their needs should not, on the facts, be a ground for evicting sub-tenants who may themselves lack any alternative premises.
  • Relief in the form of time to surrender possession was sought on account of long duration of business (nearly 20 years) and to enable them to settle accounts; specifically they sought one year's time.

Landlord / Respondents' Position (as reflected in the opinion)

  • The landlord asserted a bona fide need for the premises to carry on and expand his grocery business and had no other suitable building in the city with appropriate facilities.
  • The tenants were found to have constructed and be in possession of another building (plinth area > 2,000 sq. ft.) near Shanmugham Road that was sufficient for their business requirements, justifying eviction under Section 11(4)(iii).
  • The lease (ext. P1) permitted sub-letting but explicitly limited sub-lessees from acquiring rights beyond those available to the original tenant; sub-lessees therefore cannot claim independent rights to defeat an eviction the tenant himself cannot defeat.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Vareed v. Mary, 1968 K.L.T. 583 That the district court functioning under section 20 of the Act acts as a civil court. Used to support the conclusion that the district court's order is a civil court decision and therefore a writ of certiorari under Article 226 would not lie; petition is dealt with under Article 227.
Aundal Ammal v. Sadasivan Pillai, 1987 (1) K.L.T. 53 Referenced for the proposition that the part of Vareed's case holding remains unoverruled by the Supreme Court. Cited to confirm continued validity of the view that the district court under section 20 is a civil court for the present jurisdictional analysis.
Nallakoya v. Administrator, 1968 K.L.T. 60 That the order of the district court being the decision of a civil court is not liable to be quashed by issuance of a writ of certiorari. Reinforces jurisdictional conclusion that Article 226 is not the appropriate route to quash the district court's decision in this context.
Rupchand Gupta v. Raghuvanshi (Private) Ltd. and Another, A.I.R. 1964 S.C. 1889 That a decree for eviction passed against the lessee may bind the sub-lessee even though the sub-lessee is not impleaded; omission to implead the sub-lessee is permissible and the decree can be executed against the sub-lessee. Applied to support the position that a decree/order of eviction against a tenant can bind sub-tenants and that the law does not require impleading a sub-lessee; supports conclusion that sub-tenants may be bound by eviction even if not parties.
Appukuttan v. Rent Controller, 1987 (2) K.L.T. 932 Observations that a sub-tenant pays rent and in some contexts is to be treated as a tenant; the explanation to the definition of "landlord" in Section 2(e) deems a tenant who sub-lets as a landlord in relation to the sub-tenant. The opinion analyses the facts of Appukuttan and limits its scope — the court observes that the quoted observations were context-specific and do not support the broad contention that sub-tenants are entitled to all privileges of original tenants in the present factual matrix.

Court's Reasoning and Analysis

The court's analysis proceeds through several linked legal points:

  1. Jurisdictional approach: The petition was filed under Articles 226 and 227, but the court treats it only under Article 227 because the district court under section 20 of the Act functions as a civil court (relying on Vareed v. Mary and the fact that this aspect was not overruled by Aundal Ammal). Consequently, the remedy of writ of certiorari under Article 226 is not considered appropriate.
  2. Concurrent findings of fact: The rent control court, the appellate authority and the district court all arrived at concurrent factual findings that the landlord's need was bona fide and that the tenants possessed another building sufficient for their needs. The court finds these findings to be supported by legal evidence, not perverse, and not so unreasonable as to be incapable of being made by a judicial authority. Therefore, such concurrent findings are not open to collateral challenge in an original petition under Article 227.
  3. Statutory definitions and scope (Section 2(6)): The court examines the definition of "tenant" in Section 2(6) and notes that the definition explicitly excludes "a person placed in occupation of a building by its tenant." A sub-tenant is essentially such a person. The definition does not distinguish between sub-tenants who occupy with the landlord's consent and those who do not; accordingly, the court rejects the petitioners' contention that sub-tenants with landlord consent must be granted all protections available to tenants under the Act.
  4. Effect of Section 21: Section 21 provides that an eviction order against a tenant is binding on sub-tenants (unless obtained by fraud or collusion). Where sub-letting is allowed by the original agreement, a sub-tenant must be made a party to proceedings if he gave notice of the sub-tenancy to the landlord. The court interprets Section 21 as affording sub-tenants who occupy with landlord consent a limited protection specifically against eviction based on Section 11(4)(i) (eviction for transfer by the tenant to the sub-tenant). It does not, in the court's view, confer all the protections of an original tenant to a sub-tenant.
  5. Effect of the lease (ext. P1): Ext. P1 permitted sub-letting but expressly provided that sub-lessees would not acquire rights beyond those of the original tenant. The court treats this contractual limitation as reinforcing the statutory analysis: a sub-lessee cannot assert independent rights that the tenant does not possess.
  6. Precedential support and limitation: The court discusses Rupchand Gupta (Supreme Court) to show that law allows a decree against a tenant to bind a sub-lessee even where the sub-lessee is not impleaded. The Appukuttan decision is examined and its observations are treated as context-specific; the court holds they do not support the broad proposition urged by petitioners that sub-tenants are entitled to every protection of original tenants.
  7. Conclusion on substantive claims: Given the statutory definitions, the terms of the lease, and the concurrent findings of fact below, the court concludes the petitioners cannot, in their own right, claim the benefit of the second proviso to Section 11(e), nor can they successfully challenge the eviction under Section 11(4)(iii) on the ground that they lack an alternative building. The authorities below were justified in allowing recovery in favour of the landlord on the basis of the tenants' rights and the factual findings about the tenants' alternate premises.
  8. Discretionary relief (time to surrender): Addressing the petitioners' request for time to settle affairs, the court exercises discretion to grant a limited extension: four months to surrender possession, or, if the petitioners give an unconditional undertaking in three weeks to surrender by 12-6-1989, time is extended until that date.

Holding and Implications

Holding:

The original petition is dismissed and the orders of the authorities below (including the district court's ext. P6) are upheld. In particular, the court affirms that the landlord is entitled to recover possession under the Act on the grounds found by the lower authorities.

DISPOSITION: The original petition is disposed of in the terms described in the opinion; no order as to costs.

Practical Consequences for the Parties

  • The petitioners (sub-tenants) are not entitled, in their own right, to the protections of original tenants under the second proviso to Section 11(e) and cannot resist eviction under Section 11(4)(iii) on the ground that they lack alternate premises.
  • The petitioners must surrender possession of the premises within four months from the date of the order, unless they give an unconditional undertaking within three weeks to surrender possession on or before 12-6-1989 (in which case time is granted until that date).
  • The court's reasoning treats the district court order as that of a civil court; the petition is considered under Article 227 rather than Article 226, limiting the scope for collateral interference with concurrent factual findings of lower courts.

On Precedential Effect

The opinion applies statutory interpretation and existing case law to the facts; it does not purport to lay down a new principle of law beyond its application to the facts of this case. The court affirms established positions about the limited rights of sub-tenants and the binding effect of eviction orders on sub-tenants.

Show full summary ...

    A.V.Kammath v. Chandran

    1. Petitioners challenge the common order passed by the district court, Ernakulam, In r. C. R. P. Nos. 111/86 and 9/87. Proceedings were initiated by the first respondent under the kerala buildings (lease and rent control) act, Hereinafter referred to as 'the act' to recover buildings bearing door nos. 2600 and 2602 in ward no. 37 of cochin corporation from respondents 2 and e, Tenants of the building, And petitioners who are the sub - tenants. Recovery was sought u/ ss. 11 (e) ,11 (4) (iii) and 11 (5) of the act. That claim of the first respondent was disputed by the tenants and the sub - tenants. By ext. P2 order the rent control court came to the conclusion that the need of own occupation asserted by the landlord is reasonable, Honest and genuine and that the tenants have constructed another building which is reasonably sufficient to meet their requirements of business. It was further found that the landlord has no building of his own with facilities for expanding his present business. In view of these findings, The tenants and the sub - tenants who were respondents before the rent control court were directed to surrender vacant possession of the building u/ss. 11 (e) and 11 (4) (iii) of the act.

    2. The original tenants challenged the order of the rent control court in r. C. A. 83/84. The sub - tenants took up the matter before the appellate authority in r. C. A. 42/85. The appellate authority by ext. Pe common judgment dismissed the appeals. The original tenants filed r. C. R. P. 111/ 86 challenging the decision of the appellate authority. The sub - tenants in their turn preferred r. C. R. P. 9/87. The second additional district judge, Ernakulam, By ext. P6 common order dismissed the revision petitions upholding the order of eviction passed u/ss. 11 (e) and 11 (4) (iii) of the act. The sub - tenants challenge ext. P6 order in this original petition.

    3. This original petition is filed both under art. 226 and 227 of the constitution. However, I am dealing with it only as one under art. 227. This is for the reason that the district court functioning under s. 20 of the act acts as a civil court. It has been so held by this court in vareed v. Mary, 1968 k. L. T. 583. This part of the judgment in vareed's case has not been overruled by the supreme court in aundal ammal v. Sadasivan pillai,1987 (1) k. L. T. 53. In such circumstances the order of the district court being the decision of a civil court is not liable to be quashed by the issue of a writ of certiorari as held in the decision of this court in nallakoya v. Administrator (1968 klt 60). A writ petition under art. 226 will not therefore, Lie and hence this petition can be treated only as one under art. 227.

    4. The district court, The appellate authority and the rent control court concurrently found that the need alleged by the landlord for recovering the building is bona fide and is not a ruse to evict the tenants and the subtenants. They have also found that the landlord has no other buildings in his possession in the city for expanding his grocery business. On the basis of the evidence adduced by the parties they have entered concurrent findings of fact that the landlord genuinely requires the building for his own use. The authorities below have again concurred in finding that the tenants have put up building having a plinth area of more than 2000 sq. Feet by the side of shanmugham road, That the tenants are in possession of the same and that it is sufficient to meet their requirements and hence the landlord is entitled to recover his building u/s. 11 (4) (iii) of the act. These concurrent findings of fact are based on legal evidence. By no stretch of imagination can that findings be termed as perverse. It is not possible to state that the said findings are so unreasonable that it could not have been arrived at by any judicial authority. In such a situation, Those findings are not open to challenge in this original petition filed under art. 227 of the constitution.

    5. Ext. P1 is the lease deed by which the buildings were demised in favour of the original tenants, Respondents 2 and e. That lease deed allows the tenants to sub - lease the same. It further provides that the sub lease if granted will not be a ground for recovering the building under the rent control act. In pursuance to this provision, Respondents 2 and 3 granted sub lease to the petitioners. So, They must be treated as sub lessees who have come into possession of the property with the permission of the landlord. Such sub - tenants, According to learned counsel appearing for the petitioners, Are entitled to claim all protections that are available to the original tenants. The landlord in the instant case wanted recovery of the buildings u/s. 11 (e) of the act. Second proviso to that clause allows the tenant to successfully prevent eviction if he is depending for his livelihood mainly on the income derived from any trade or business carried on in the building and if there is no other suitable building available in the locality for him to carry on such business. The petitioners being the sub - tenants with permission of the landlord are entitled to the benefit of the above provision. The authorities below have wrongly denied that benefit to the petitioners. The petitioners were not allowed to let in any evidence to substantiate their rights under the 2nd proviso to s. 11 (e) either. Hence it is argued that the orders passed by the authorities below are contrary to law and liable to be quashed.

    6. The landlord has been allowed to recover possession of the buildings on the ground that the tenants have in their possession another building reasonably sufficient for their requirements in the city. The tenants' possession of the other building cannot be, It is contended, Taken as a ground for evicting the sub - tenants who have come into possession of the buildings with the permission of the landlord. According to counsel, On the facts of this case, The authorities below ought to have examined whether the sub - tenants who are in possession of the building have in their possession other building reasonably sufficient for their requirements. Since they are not having such building no order u/s. 11 (4) (iii) should have been passed. This having not been done, It is contended that the order of eviction passed u/s. 11 (4) (iii) of the act is illegal.

    7. The main contention of the petitioners is that sub - tenants when occupy the building with the consent of the landlord have to be treated as original tenants and they are entitled to get all the benefits and privileges of the tenants as against the landlord. The learned counsel appearing for the petitioners submits that the second part of s. 21 of the act makes it obligatory on the part of the landlord to implead the sub - tenants who have come into possession of the buildings with the permission of the landlord, In the proceedings under the act. This has been so provided by the legislature, According to counsel, Only because such sub - tenants are not bound by the order of eviction passed against the tenants. The natural consequence, It is submitted is that the sub - tenants who got possession of the buildings with the permission of the landlord must be taken to have replaced the original tenants and consequently acquired all rights and privileges of the original tenants under the act. If not, It is argued that there was no necessity to have such sub - tenants to be made parties in the proceedings under the act. I shall proceed to examine this contention of the petitioners in detail.

    8. S. 2 (6) of the act defines 'tenant' in the following terms:

    "tenant" means any person by whom or on whose account rent is payable for a building and includes:

    (i) xxx xxx

    (ii) a person continuing in possession after the termination of the tenancy in his favour, But does not include a kudikidappukaran as defined in the kerala land reforms act 1963 (kerala act 1 of 1964) or a person placed in occupation of a building by its tenant,

    xxx xxx xxx xxx xxx. "

    this definition excludes from the ambit of "tenant" persons placed in occupation of the building by its tenant. Sub - tenant can essentially be considered as a person placed in occupation of the building by its tenant. Therefore, The definition "tenant" under the act excludes 'sub - tenant', He being a person placed in occupation of the building by its tenant. Sub - tenant may be placed in occupation of the building with the permission of the landlord. He may be one who came into occupation without the permission of the landlord. No distinction between these categories of sub - tenants is contemplated by the definition. A sub - tenant who came into occupation of the building with the permission of the landlord stands in the same footing as a person who came into occupation without permission of the landlord, As far as the definition is concerned. Since the definition does not make any distinction between subtenants who occupy the building with the consent of the landlord and those coming into possession without the consent of the landlord, I cannot agree with the learned counsel appearing for the petitioners that the former category of sub - tenants are entitled to all the protections that are available to the tenants under the act.

    9. S. 21 of the act reads:

    "any order for the eviction of a tenant passed under this act shall be binding on all sub - tenants under such tenant whether they were parties to the proceedings or not provided that such order was not obtained by fraud or collusion. In cases where sub - letting is allowed under the original agreement of tenancy the sub - tenant shall be made a party to the proceedings if he had given notice of the sub - tenancy to the landlord."

    as per this section any order of eviction passed against a tenant shall bind on all sub - tenants under that tenant. They are so bound even if they are not parties to the proceedings. Sub - tenants can free themselves from the clutches of that order only if they establish fraud or collusion between the landlord and the original tenant. This provision does not make any distinction between sub - tenants who occupy the building with or without consent of the landlord. In cases where the sub - letting is allowed under the original lease, The second part of s. 21 mandates that such sub - tenants should be made a party to the proceedings initiated under the act. It is so only if notice of the sub - tenancy is given to the landlord. What is the purpose of behind this provision? according to me, A sub - tenant who has come into occupation with the consent of the landlord can successfully prevent the claim for eviction u/s. 11 (4) (i) of the act. U/s. 11 (4) (i) transfer by the tenant to the subtenant is a ground for the landlord to recover the building. That right of the landlord cannot be pressed into service if the sub - lease was either sanctioned by the original lease or has been effected with the consent of the landlord. A sub - tenant who is in occupation with the consent of the landlord gets only j this protection, Viz., Exemption from eviction based on s. 11 (4) (i). No other right is available to such a sub - tenant. The act protects the tenants. Tenants alone are allowed security and protection under it. The tenant cannot by sub - letting the building extend this protection to others. If the sub - letting is by agreement of the landlord then that sub - tenant will not be liable to eviction under s. 11 (4) (i) of the act. This is the scheme of the act.

    10. The effect of a decree passed against a tenant as against a sub - tenant came up for consideration before the supreme court in rupchand gupta v. Raghuvanshi (private) ltd and another (a. I. R. 1964 sc 1889). In that case the landlord instituted a suit against his tenant for eviction. That suit was decreed. The sub - tenant challenged that decree. When that proceedings came up before the supreme court, Their lordships observed:

    "it is quite clear that the law does not require that the sub - lessee need be made a party. It has been rightly pointed out by the high court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub - lessee as a party to the suit, The object of the landlord is to eject the sub - lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub - lessee. This may act harshly on the sub - lessee, But this is a position well understood by him when he took the sublease. The law allow this and so the omission cannot be said to be an improper act."

    11. Ext. P1 is the lease deed executed by the original tenants in favour of the landlord. As per that lease deed the tenant is given right to sub - lease any portion of the building. It further provides that such sub - lease will not be a ground for eviction under the rent control legislation. But the lease deed further provides that the sub - lessees will not acquire any right which is not available to the original tenant. In other words the lease deed, Ext. P1, Limits privileges of the sub - tenant. The sub - tenant cannot claim any right over the building which the tenant himself is not entitled to. Viewed in that manner, The petitioners who came into possession of the building as sublessees cannot put forward any right of their own to prevent the order for recovery in favour of the landlord. In view of the specific provision in ext. P1, The petitioners cannot put forward any independent right to the tenanted premises. If the original tenant is not entitled to prevent the order of eviction under the act, The sub - tenant will also be subjected to the same disability.

    12. In appukuttan v. Rent controller (1987 (2) k. L. T. 932), Thomas, J. Observed:

    "a sub - tenant is also a person who pays rent to his landlord, Though his landlord may be the tenant of the owner of the building. It may be, There is no privity of contract between the owner of the building and the sub - tenant. Even then, Under law a sub - tenant is also a tenant, Though for certain other purposes a sub - tenant has no protection or claim as against the original landlord. The explanation given to the definition of "landlord" in s. 2 (e) of the act makes the position further clear. That explanation reads thus: "a tenant who sub - lets shall be deemed to be a landlord within the meaning of this act in relation to the sub - tenant". What is deducible from the said explanation is that a sub - tenant cannot be excluded from the purview of the definition of the word "tenant" in the act. "

    this observation was relied on by the learned counsel appearing for the petitioners to contend that the sub - tenants are also tenants and consequently they are entitled to all the privileges that are available to the original tenants. For a proper understanding of the said observation it is necessary to understand the facts of that case. The landlord filed an application for eviction on the ground of sub - letting u/s. 11 (4) (i) of the act. That application was against three persons, Tenant and sub - tenants including appukuttan the petitioner before this court. Before, Appukuttan could enter appearance before the rent control court, The tenant withdrew his contentions and hence the rent control court passed an ex parte order for eviction. The petitioner filed an application to set aside that ex parte order. The authorities below disallowed his prayer. When the matter came up before this court, This court allowed his prayer and directed the authorities below to dispose of the case on merits. S. 2 of the act defines various terms with the prefix "unless the context otherwise requires" so, On the facts, Subject to contextual adaptation, This court made the above quoted observations to allow the sub - tenant who was made a party in that proceeding and was successfully prevented from raising any contention on account of the collusion between the landlord and the tenant to enter appearance and prosecute the proceedings. An ex parte decree happened to be passed on account of tenant withdrawing from the contentions even before the sub - tenant who was made a party entered appearance. Such an order will certainly fall within the first part of s. 21 of the act. That order was open to challenge by the sub - tenant. It can be taken that the above observations were made by the learned judge only because of those rights which were available to the sub - tenant. Those observations cannot in any way go to support the argument now put forth by the petitioners.

    13. It is settled law that there is no privity of contract between the landlord and a sub - tenant. The sub - tenant cannot in his own right question the right of the landlord to recover possession. The legal position of a sub - tenant, Being as stated above, The petitioners cannot, In their own right claim the benefit of the second proviso to s. 11 (e) of the act. Nor can they challenge the order of eviction passed u/s. 11 (4) (iii) on the ground that they are not possessed of any building sufficient for their business. The authorities below were perfectly justified in allowing the landlord to recover the buildings taking note of the rights of the tenants who are respondents 2 and e. I find no ground to interfere with the orders passed by the authorities below.

    14. Lastly, The learned counsel appearing for the petitioners submitted that the petitioners were conducting the business in the premises for nearly 20 years and that they require sometime to settle the accounts with their customers before surrendering possession of the buildings. Accordingly, It was prayed that the petitioners may be granted one year's time to surrender possession of the building. Taking into consideration the entire facts and circumstances of the case, I think the petitioners should be granted four months' time for surrendering the building to the first respondent. If the petitioners give an unconditional undertaking before the rent control court, Within three weeks from today to the effect that they will surrender the buildings to the first respondent on or before 12 - 6 - 1989 they will be granted time till that date, Viz., 12 - 6 - 1989.

    the original petition is disposed of in the above terms. I make no order as to costs.

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    Comments

    A.V.Kammath v. Chandran
    (Feb 14, 1989)