MARIYAKUTTY Vs. THOMAS FRANGLINE

JUDGEMENT

(1.) This is a revision petition filed under S.20 of the Kerala Buildings (Lease and Rent Control) Act, 1965. The facts leading to this revision petition can be stated thus. The landlord who is the revision petitioner filed R. C. P. No. 34 of 1963 in the Perumbavoor Munisiff's Court for eviction of the tenant under S.11(2)(3) and (4) of the Kerala Buildings (Lease and Rent Control) Act 16 of 1959. The learned Munsiff allowed the application under sub-s.(3) and (4) of S.11 of the Act, holding that the landlord is in bona fide need of the building for his own use and occupation and that the tenant has subleased the building without the consent of the landlord subsequent to Act 16 of 1959.

(2.) In the appeal filed by the tenant the learned additional District Judge of Parur took the view that because of the coming into force of Kerala Act 2 of 1965 during the pendency of the appeal, the execution of a sublease without consent of the landlord before Act 2 of 1965 is no longer a ground for eviction, and he therefore did not consider the case of sublease on the merits. On the question of bona fide need of the landlord the learned Judge differed from the Munsiff and held that the bona fide need as required by S.11 sub-s.(3) of Act 2 of 1965 has not been established. The correctness of the findings of the Additional District Judge is challenged in the revision petition by the learned counsel appearing for the landlord.

(3.) Under Act 16 of 1959 which was only a temporary statute a landlord is entitled to an order for evicting the tenant among other grounds if the landlord bona fide needs the building for his own occupation or the occupation by any member of his family dependent on him or if the tenant has without the consent of the landlord transferred his right under the lease or sublet the entire building or any portion thereof subsequent to the Act if the lease does not confer on him any right to do so or the landlord has not consented to such subletting. At the time when Act 2 of 1965 came into force the period of Act 16 of 1959 had expired. A landlord under S.11 sub-s.4(1) of Act 2 of 1965 can get an order of eviction against the tenant only if the tenant after the commencement of the Act, 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. The learned advocate for the revision petitioner relying on S.34 of Act 2 of 1965 contended that the right accrued to his client under Act 16 of 1959 to evict the tenant on the ground of sublease without the consent of the landlord subsequent to the said Act is kept alive by Act 2 of 1965 and therefore the view of the court below is not correct. It is therefore necessary to examine S.34 of Act 2 of 1965 reading as follows:--