K. LUBNA & ORS. versus BEEVI & ORS. on 13 January 2020

K. LUBNA & ORS.

v.

BEEVI & ORS.

(Civil Appeal Nos. 2442-2443 of 2011)

JANUARY 13, 2020

[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]

Kerala Buildings (Lease and Rent Control) Act, 1965 –s.11(4)(i) – Eviction of tenants – Sub-tenancy – Appellants-ownersalleged that respondents-tenants stopped the payment of rent ofthree shop room premises, defined as room nos. 3/471, 3/472 and 3/476, and it was also alleged that two shops were sublet by therespondent without the consent of the appellants – The appellantssent a legal notice dated 15.12.1987 demanding surrender ofpossession of suit shop rooms and arrear of rent, and ultimatelyfiled an eviction petition before the Rent Control Court – The TrialCourt found against the appellants on all grounds except non-payment of rent while granting a decree of eviction for all the threeshops – The Appellate Authority found bonafide need of appellantin respect of room no. 3/472 and sub-letting in respect of room no.3/476 was proved – Thus, eviction was granted by the AppellateAuthority in respect of room nos. 3/472 and 3/476 – The High Courtin the cross- revision petitions sustained eviction order only quaroom no. 3/476 on the ground of sub-letting – Before the SupremeCourt, the appellants contended that u/s. 11(4)(i) of the Act, even ifthe sub-tenancy is created in part of the premises, the entitlement ofeviction is in respect of the whole of the premises – The respondentsdissuaded from examination of this plea in view of it not havingbeen raised at an earlier stage and thus, no factual basis beinglaid for the same – Held: On the legal principle, a pure question oflaw can be examined at any stage, including before the SupremeCourt – If the factual foundation for a case has been laid and thelegal consequence of the same have not been examined, theexamination of such legal consequence would be a pure questionof law – The finding of fact in the instant case was not required tobe closely scrutinised as the essential facts, which were analysedby the Courts below, clearly show the existence of a single tenancy

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A– Issuance of a single notice and the filing of a single evictionpetition, albeit raising different grounds for different portions ofthe premises, is an undisputed fact – Further, under the statute,sub-letting of any part of the tenanted premises gives right to evictionfrom the whole premises – Thus, the appellants entitled to a decreeof eviction for the entire premises, mentioned as tenanted premises,Bon the ground of the respondents having sub-let a part of thepremises.

Allowing the appeals, the Court

HELD: 1. The judicial pronouncements of this Court in M.CMeeramytheen & Ors. v. K. Parameswaran Pillai & Ors. whichdeals with the very Kerala Buildings (Lease and Rent Control)Act, 1965. In the facts of that case, one single tenancy was createdin relation to two shop rooms, while sub-tenancy was created inrespect of one of the two shop rooms by the tenant. Much later,a partition was effected by virtue of which the two shops wereDallotted to the share of different co-sharers who joined togetherin the suit proceedings seeking eviction of tenants as sub-lessees.It was held that it could not be said that on account of the partition,the original tenancy was divided and therefore, eviction could beordered only in respect of one of the rooms that was actually sub-Elet, more so when the cause of action had arisen prior to thepartition. The appellate court and the High Court, having granteda decree of eviction only with respect to one shop, was stated tobe a legal error committed and, thus, eviction was granted inrespect of both the shops on the ground that one of the shopswas sub-leased, in view of the provision of the Act. [Para 13]F[974-C-E]

M. Meeramytheen & Ors. v. K. Parameswaran Pillai &Ors. (2010) 15 SCC 359 – relied on.

2. The aforesaid judgment, covers the legal principle on allGfours. A bare reading of sub-para (i) of sub-section (4) of Section11 of the said Act leaves no manner of doubt that the cause arisesupon the tenant transferring his rights under a lease and sub-letsthe entire building “or any portion thereof”, if the lease does notconfer on him any right to do so. The proviso requires that thelandlord should have sent a registered notice to the tenantH

intimating the contravention of the said condition of the leaseand upon the tenant failing to terminate the transfer or the sub-lease, as the case may be, within thirty (30) days of the receipt ofthe notice, an application for eviction could be made by thelandlord. Thus, sub-letting of any part of the tenanted premisesgives right to eviction from the whole premises. That is how thestatute reads and that is also, a reasonable interpretation of thesame, as, if one tenancy is created it would not be appropriate topass eviction order only in respect of a part thereof, and not thewhole. The provision reading clearly, and in view of the aforesaidjudicial pronouncements, there is no doubt about this proposition.This is not a case of bona fide requirement. The findings of fact inthis case are not required to be closely scrutinised as the essentialfacts, which have been analysed by the courts below, clearly showthe existence of a single tenancy. Issuance of a single notice andthe filing of a single eviction petition, albeit raising differentgrounds for different portions of the premises, is an undisputedfact. Thus, the appellant is not expected to allege sub-letting ofthe whole premises if the sub-letting is only in part of the premises.No doubt the appellants have not specifically claimed that by sub-letting a portion, the whole premises is liable to be vacated, butthen that is the legal consequence as is emerging from the legalposition. [Para 14][974-F-G; 975-A-D]

3. Thus, the appellants are entitled to a decree of evictionfor the entire premises, mentioned as tenanted premises, on theground of the respondents having sub-let a part of the premises,and a decree is accordingly passed. [Para 16][975-F]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2442-2443 of 2011.

From the Judgment and Order dated 30.10.2007 of the High Courtof Kerala at Ernakulam in Civil Revision Petition Nos. 1959 of 1998and 1175 of 2000.

K. Rajeev, Adv. for the Appellants.

Raghenth Basant, Ms. Mahamaya Chatterjee, Ms. Liz Mathew,Advs. for the Respondents.

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AThe Judgment of the Court was delivered bySANJAY KISHAN KAUL, J.

1. One Pathummakutty, the owner, let out three shop roompremises, defined as Room Nos. 3/471, 3/472, 3/476, located in 1-29 inSurvey 14 and Re-survey 15/6, at the eastern side of AreekaduBNirathuVazhi, Nallalam Amsom Desom, Kozhikode Taluk to oneBeerankoya vide document dated 1.1.1967 for a monthly rent of Rs.75.The ownership rights in the property were transferred in favour of theappellants in 1986 by a registered document. This transfer/assignmentwas intimated to original respondent No.1 (now represented through hisClegal heirs) as per a registered letter in May, 1986. The allegation is thatthe original respondent sent rent through money orders only up toNovember, 1987, and stopped payment of rent thereafter. It is also allegedthat the appellants required the premises bona fide; two of the shopshad been sublet by the original respondent without the consent of theappellants and the value of the suit shops had been reduced materiallyDand permanently by the respondents. The appellants, thus, sent a legalnotice dated 15.12.1987 demanding surrender of possession of suit shoprooms and arrears of rent, and ultimately filed an eviction petition beforethe Rent Control Court, Kozhikode for eviction under Sections 11(2),11(3) and 11(4)(i) & 11(4)(ii) of the Kerala Buildings (Lease and RentEControl), Act, 1965 (hereinafter referred to as the ‘said Act’).

2. The trial court vide judgment dated 31.10.1994 found againstthe appellants on all grounds except non-payment of rent while grantinga decree of eviction for all the three shops. In terms of Section 11(2)(b)of the said Act read with Section 11(2)(c) of the said Act, in case suchFan eviction order is passed, one month’s time or any further time asdeemed proper by the Rent Control Court is granted to the tenant todeposit the arrears of rent with interest and the cost of proceeding, andin that eventuality the eviction order is to stand vacated. It does appearthat the amount was thereafter deposited by the respondents. Theappellants preferred an appeal before the appellate authority. The threeGrooms were 3/471, 3/472 and 3/476. In respect of Room No.3/471 thoughbona fide need of the appellants was not found, in Room No.3/472 thebona fide need of the appellant was stated to be proved but no sub-letting was stated to have been proved, and in respect of Room No.3/476 the sub-letting was proved. Thus, eviction was granted in respect ofrooms 3/472 and 3/476 vide order dated 9.7.1998.H

3. The aforesaid order resulted in cross-revision petitions by bothsides before the High Court of Kerala. In terms of the impugned orderdated 30.10.2007 qua Room No.3/471, no bona fide need has beenfound and the position is the same in respect of Room No.3/472. Further,while sub-letting was not proved qua Room No. 3/472, was stated tohave been proved qua Room No.3/476. The result of the aforesaid isthat the endeavour of eviction from Room Nos.3/471 and 3/472 failed,while eviction order qua Room No.3/476 on the ground of sub-lettingwas sustained.

4. The appellants, aggrieved by this order, preferred a SpecialLeave Petition, in which leave was granted on 4.3.2011. The respondentsdid not prefer any appeal, and even after leave was granted, did not fileany cross-appeal/cross-objections. In the proceedings of 29.8.2019, thisCourt recorded the real contention of the appellants as advanced by thecounsel, that there was one tenancy though there were different violationsin different portions of the tenancy. The notice dated 15.12.1987 wasstated to be a composite notice and one eviction petition was filed quathewhole premises. That being the position, it was sought to be contendedbefore us, by inviting our attention to Section 11(4)(i) of the said Act,that even if the sub-tenancy is created in part of the premises, theentitlement of eviction is in respect of the whole of the premises. Therelevant provision reads as under:

“11. Eviction of tenants.—

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(4) A landlord may apply to the Rent Control Court for an orderdirecting the tenant to put the landlord in possession of thebuilding,—

(i) if the tenant after the commencement of this Act, withoutthe consent of the landlord, transfers his right under the leaseor sub-lets the entire building or any portion thereof ifthe lease does not confer on him any right to do so:

Provided that an application under this clause shall not be madefor the first time in respect of one and the same tenancy unlessthe landlord has sent a registered notice to the tenantintimating the contravention of the said condition of the leaseand the tenant has failed to terminate the transfer or the sublease A

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Aas the case may be, within thirty days of the receipt of thenotice or the refusal thereof.”

5. It would be useful at this stage itself to also reproduce thedefinition of a ‘building’ as defined under Section 2(i) of the said Act,which reads as under:B“

“2.Definitions.—In this Act, unless the context otherwiserequires,-

(1) “building” means any building or hut or part of a building or hutlet or to be let separately for residential or nonresidential purposeand includes- C

(a) …..

(b) …..

(c) …..”

6. In order to appreciate the controversy, we deemed it appropriateDto peruse the notice dated 15.12.1987, which was not on record. In thesubsequent proceedings, it was found that there was some difficulty inobtaining the same and, thus, the record of the trial court was called for,to peruse the same. On a perusal of the record, what emerges is thatthere was actually one tenancy and one single notice seeking eviction ofEthe tenants on different grounds, though the allegation against the threeportions are different in character. A perusal of the eviction petition alsoshows the same, i.e., there is a single eviction petition for the threeshops/rooms, though the alleged violations are different in respect ofdifferent portions.

F7. We may notice that the plea sought to be advanced before us,that sub-letting one room would entail eviction from the entire tenancypremises, apparently was never urged before the trial court, the appellatecourt or the High Court, and forms a part of the pleadings before theSupreme Court, to the extent of being included in the rejoinder to theSLP. Thereafter by way of an interlocutory application,additional groundsGwere urged where this question was sought to be raised, and leave wasgranted by this Court post that stage. The net effect, in our view of all ofthese is that this plea has to be examined; rather this is the only plea tobe examined by us in view of the finding of fact recorded by the threecourts.

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8. Learned counsel for the respondents endeavoured to dissuadeus from examining this plea in view of it not having been raised at anearlier stage and thus, no factual basis being laid for the same. However,on perusal of the eviction petition, the notice and the reply, what is foundis that the aspect of single tenancy was never disputed. Nor is it disputedthat there were different grounds made out for different portions, i.e.,that the single tenancy was of three rooms, but what the respondents, astenants, were alleged to have done, to constitute violation of the terms ofthe lease was different for the three portions. Such allegations, however,did not find favour ultimately, except to the extent of one of the portions,i.e., Room No.3/476, where the finding reached was of subletting, bythe appellate authority, reversing the finding of the trial court on thataspect, and the High Court thereafter affirming the same. Thus, there isa concurrent finding by the final court of fact, as well as in the revisionpetition.

9. On the legal principle, it is trite to say that a pure question oflaw can be examined at any stage, including before this Court. If thefactual foundation for a case has been laid and the legal consequencesof the same have not been examined, the examination of such legalconsequences would be a pure question of law[1].

10. No doubt the legal foundation to raise a case by including it inthe grounds of appeal is mandated. Such mandate was fulfilled by movinga separate application for permission to urge additional grounds, a courseof action, which has already been examined by, and received theimprimatur of, this Court in Chittoori Subbanna v. Kudappa Subbanna[2].

11. We may also usefully refer to what has been observed byLord Watson in Connecticut Fire Insurance Co. v. Kavanagh[3] in thefollowing words:

“….When a question of law is raised for the first time in a courtof last resort upon the construction of a document or upon factseither admitted or proved beyond controversy, it is not onlycompetent but expedient in the interests of justice to entertain theplea. The expediency of adopting that course may be doubtedwhen the plea cannot be disposed of without deciding nice questions 1 Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari 1950 SCR 852

2 AIR 1965 SC 1325

3 1892 A.C. 473

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974SUPREME COURT REPORTS

[2020] 1 S.C.R.

Aof fact in considering which the court of ultimate review is placedin a much less advantageous position than the courts below.”

12. In our view, the aforesaid succinctly sets forth the parametersof scrutiny, where the question of law is sought to be raised at the finalcourt stage. There are no “nice questions of fact” required to be decidedBin the present case which would dissuade us from examining this plea atthis stage. We have set forth the undisputed facts aforesaid. Thus, theonly question is whether this is a question of law which deserves to beexamined, and has ramifications in the present case.

13. We may now turn to the judicial pronouncements of this CourtCin M. Meeramytheen & Ors. v. K. Parameswaran Pillai & Ors.[4],which deals with the very said Act with which we are concerned. In thefacts of that case, one single tenancy was created in relation to twoshop rooms, while sub-tenancy was created in respect of one of the twoshop rooms by the tenant. Much later, a partition was effected by virtueof which the two shops were allotted to the share of different co-sharersDwho joined together in the suit proceedings seeking eviction of tenantsas sub-lessees. It was held that it could not be said that on account ofthe partition, the original tenancy was divided and therefore, evictioncould be ordered only in respect of one of the rooms that was actuallysub-let, more so when the cause of action had arisen prior to the partition.EThe appellate court and the High Court, having granted a decree ofeviction only with respect to one shop, was stated to be a legal errorcommitted and, thus, eviction was granted in respect of both the shopson the ground that one of the shops was sub-leased, in view of theprovision extracted hereinabove.

F14. The aforesaid judgment, in our view, covers the legal principleon all fours. A bare reading of sub-para (i) of sub-section (4) of Section11 of the said Act leaves no manner of doubt that the cause arises uponthe tenant transferring his rights under a lease and sub-lets the entirebuilding “or any portion thereof”, if the lease does not confer on him anyright to do so. The proviso requires that the landlord should have sent aGregistered notice to the tenant intimating the contravention of the saidcondition of the lease and upon the tenant failing to terminate the transferor the sub-lease, as the case may be, within thirty (30) days of the receiptof the notice, an application for eviction could be made by the landlord.

Thus, sub-letting of any part of the tenanted premises gives right toeviction from the whole premises. That is how the statute reads and thatis also, in our opinion, a reasonable interpretation of the same, as, if onetenancy is created it would not be appropriate to pass eviction order onlyin respect of a part thereof, and not the whole. The provision readingclearly, and in view of the aforesaid judicial pronouncements, there is nodoubt about this proposition. This is not a case of bona fide requirement.The findings of fact in this case are not required to be closely scrutinisedas the essential facts, which have been analysed by the courts below,clearly show the existence of a single tenancy. Issuance of a singlenotice and the filing of a single eviction petition, albeit raising differentgrounds for different portions of the premises, is an undisputed fact.Thus, the appellant is not expected to allege sub-letting of the wholepremises if the sub-letting is only in part of the premises. No doubt theappellants have not specifically claimed that by sub-letting a portion, thewhole premises is liable to be vacated, but then that is the legalconsequence as is emerging from the legal position.

15. Learned counsel for the respondent did seek to contend thathad he known all these consequences, he would not have accepted thejudgment of the High Court, as he was maintaining the occupation oftwo of the rooms and had accepted the vacation of one room. But thenwe squarely put to him that the additional grounds were pleaded andthereafter leave was granted. Thus, nothing prevented the respondentsfrom filing cross-objections/cross-appeals at that stage of time, whichthey chose not to do despite knowing the nature of plea which has beenraised as an additional ground.

16. We are, thus, of the view that the appellants are entitled to adecree of eviction for the entire premises, mentioned as tenanted premises,on the ground of the respondents having sub-let a part of the premises,and a decree is accordingly passed.

17. In the given facts of the case, we grant the respondents six(6) months’ time to vacate the premises.

18. The appeals are accordingly allowed, leaving the parties tobear their own costs.

Ankit Gyan

Appeals allowed.

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