KUMARAN Vs. JOSE

JUDGEMENT

(1.) Respondent No. 1 in R. C. O. P. 17 of 1989 on the file of the Rent Control Court, Irinjalakuda is the petitioner in this Revision. R. C. O. P. 17 of 1989 was one filed by the landlord of the building (a room in a building, but a building by definition) for eviction of the tenant under sub-s.2, 3 and 4(i) of S.11 of the Kerala Buildings (Lease and Rent Control) Act. It is submitted that the claim under S.11(3) of the Act on the ground of bona fide need was found against and does not survive for consideration here. Similarly though an order for eviction was passed under S.11(2)(b) of the Act on the ground of arrears of rent, the same was got vacated by the tenant by resort to S.11(2)(c) of the Act. Hence that claim also does not arise here. The claim that survives for decision in this Revision is the claim under S.11(4)(i) of the Act on the ground that the tenant had sublet the building without being authorised to do so by the lease deed and without the consent of the landlord. The allegation was that the tenant, respondent No. 1 before the Rent Control Court, has sublet a portion of the building after separating it with a wooden partition to respondent No. 2 before the Rent Control Court. The tenant denied that contention and contended that respondent No. 2 was only his nephew who had been permitted to keep some Allopathic medicine in a portion of the room and that too was done with the permission of the predecessor of the landlord who had subsequently gifted the building to the landlord. The Rent Control Court disallowed the claim for eviction under S.11(4)(i) of the Act. The Appellate Authority reversed that decision and ordered eviction. The legality, regularity and propriety of the order passed by the Appellate Authority is questioned before us.

(2.) Before considering the question arising for decision, one aspect has to be adverted to. The Kerala Buildings (Lease and Rent Control) Act, 1959, Act 16 of 1959 was not extended to the Panchayat in which the petition schedule building is situate. The building was let out to the tenant on the terms of Ext. A1 rent deed on 3.11.1978. In that deed there was an undertaking by the tenant that he would not sublet the building to anyone else during the subsistence of the tenancy. The Kerala Buildings (Lease and Rent Control) Act, Act 2 of 1965 came into force on 1.4.1965 by virtue of the deeming provision contained in S.11(4) of the Act. But, by virtue of S.1(3) of the Act, the applicability of the Act depended on the inclusion of the concerned area in the areas mentioned in the Schedule to the Act or subsequently included in the Schedule, by a Notification in the Gazette. The petition schedule building is situate in Koratty Panchayat of Mukundapuram Taluk. The Act was extended to the Panchayat in question by Notification S. R. O. 176/88 dated 28.1.1986. Thus the Rent Control Act was extended to the Panchayat in question only on 28.1.1986.

(3.) S.11(4)(i) of the Act furnishes a ground for eviction to the landlord of a building if the tenant, after the commencement of Act 2 of 1965, 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 any right to do so. Before a landlord could get an order for eviction under S.11(4)(i) of the Act, the landlord had to show that the subletting or transfer of his right by the tenant, had occurred after the commencement of the Act. In respect of areas to which the Kerala Buildings (Lease and Rent Control) Act, 1959 had stood extended before the enactment of Act 2 of 1965 the question had arisen whether a subletting by a tenant while Act 16 of 1959 was in force, without being authorised to do so by the lease and without the consent of the landlord, was liable to be evicted under S.11(4)(i) of Act 2 of 1965. On an interpretation of S.34 of Act 2 of 1965, it was held that by virtue of the proviso to S.34(1) of the Act, a petition for eviction under S.11(4)(i) of the Act 2 of 1965 could be maintained based on a subletting that had taken place after the commencement of the Kerala Buildings (Lease and Rent Control) Act, 1959. The matter ultimately reached the Supreme Court and the Supreme Court in E. V. Mathai v. Subordinate Judge ( AIR 1970 SC 337 ) held that an application for eviction under S.11(4)(i) of Act 2 of 1965 would be maintainable if the subletting had taken place while Act 16 of 1959 was in force and that Act had application to the area in question. It is therefore clear that the subletting need not necessarily be after the Kerala Buildings (Lease and Rent Control) Act, Act 2 of 1965 to deprive the tenant of the protection afforded by the Act when moved in that behalf by the landlord under S.11(4)(i) of the Act. But the position in this case is somewhat different. The letting to the tenant itself was only in the year 1978, after the repeal of Act 16 of 1959 and after the coming into force of Act 1 of 1965. Also, Act 16 of 1959 was never extended to the area in question. Therefore, there was also no corresponding provision in operation prior to the extension of Act 2 of 1965 to the area in question.