ARANGIL RAGHAVAN Vs. K SREEDHARA PANICKER

JUDGEMENT

(1.) The petitioner in RCP No. 158 of 1985 on the file of the Rent Control Court, Kozhikode, being the landlord of a building, is the petitioner in this Revision filed under S.20 of the Kerala Buildings (Lease & Rent Control) Act. The landlord sought eviction of the legal representatives of the tenant, one Kelappa Panicker, from the petition schedule building on the allegation that the building has been sublet by them to respondent No. 3 before the Rent Control Court. Kelappa Panicker, the predecessor of respondents 1, 2 and 4 to 8, was an Astrologer. He died in the year 1973. Respondent No. 3, before the Rent Control Court, according to him, had learnt astrology from Kelappa Panicker, the original tenant. His case was that he was practising the profession of that of an Astrologer along with Kelappa Panicker in the petition schedule building even during the life time of Kelappa Panicker. After the death of Kelappa Panicker, respondent No. 3 had entered into a partnership with the heirs of Kelappa Panicker and hence there was no subletting which would justify an order for eviction under S.11(4)(i) of the Act. The Rent Control Court found that the case of being associated with Kelappa Panicker, set up by respondent No. 3, had not been established. It also found that the case of partnership with heirs of Kelappa Panicker set up by respondent No. 3 has also not been established. But the Rent Control Court refused eviction to the landlord under S.11(4)(i) of the Act, essentially on the ground that the landlord must have been aware of the presence of respondent No. 3 in the premises, since he was practising the profession of that of an Astrologer in the petition schedule building and from that, it could be inferred that the landlord had consented to the sub lease. The Appellate Authority also found that the case of respondent No. 3 before the Rent Control Court that he was practising the profession of that of an Astrologer with Kelappa Panicker and subsequent to the death of Kelappa Panicker, he had entered into a partnership with the heirs of Kelappa Panicker, has not been established. The Appellate Authority also took the view that the landlord must have been aware of the presence of respondent No. 3 in the petition schedule building even while Kelappa Panicker was alive and thereafter and from this, it followed that no order for eviction under S.11(4)(i) of the Act could be passed, since the landlord must be taken to have consented to the sub lease. Thus, the Appellate Authority also refused eviction inspite of finding the sub lease, pleaded by the landlord.

(2.) Thus, inspite of finding that the exclusive possession has been transferred to respondent No. 3 before the Rent Control Court by the original tenant, Kelappa Panicker, the Appellate Authority has denied an order for eviction to the landlord by applying a theory of acquiescence on the part of the landlord to the exclusive user of the building by respondent No. 3. The Rent Control Court and the Appellate Authority have drawn inspiration from a decision of this Court in Kalyanasundaram Pillai v. Ramamoorthy ( 1985 KLT 922 ). In that decision it was held that, long silence on the part of a landlord is a strong corroborative circumstance in support of the contention of the tenant that there was consent to the sub letting. It was stated that if the subletting had been without the landlord's consent, it could be presumed that the landlord would not have been slow in instituting the proceeding for eviction as soon as he came to know it. It is submitted by learned counsel for the landlord that the decision relied on by the authorities below is based on a misunderstanding of the scope of S.11(4)(i) of the Act and requires to be reconsidered since the question, how far a theory of acquiescence can be invoked in the context of S.11(4)(i) of the Act, has not been properly considered in that decision.

(3.) S.11(4(i) of the Act provides that a tenant is liable to be evicted if, after the commencement of the Act, the tenant, without the consent of the landlord, transfers his right under the lease or sublets the entire building or any portion thereof, if the lease does not confer on him the right to do so. The two circumstances in which a subletting by a tenant does not lead to an order for eviction under S.11(4)(i) of the Act, are the circumstance where the lease or the instrument of lease confers on him the right to do so and the circumstance where the subletting is made with the consent of the landlord. According to us, in a case where the lease does not authorise the tenant to sublet, the consent of the landlord contemplated by the section is a consent obtained prior to the subletting or a consent for the subletting. The Section speaks of a transfer of the right under the lease or subletting without the consent of the landlord as a ground for eviction.