LELITHA Vs. AYISSUMMA

JUDGEMENT

(1.) THE reference order reads:

(2.) SUSTAINING the decision of the learned Subordinate Judge reversing the order of the Rent Control Court dismissing an application for eviction filed under Subsections (2) and (4) (i) of Section 11 of the Kerala Buildings (Lease and Rent control) Act, 1965, the learned District Judge, on revision by the 2nd respondent before the Rent Control Court (and also before the learned subordinate Judge) held that the landlord has made out a case of transfer by the tenant of his right under the lease evidenced by Ext. A-l in favour of the 2nd respondent, though not one of sub-letting as held by the learned subordinate Judge. On the question of notice to quit, differing from the learned subordinate Judge according to whom proof of sending notice by registered post was sufficient to presume receipt thereof (there is such proof in this case)the learned District Judge held that there was a contract to the contrary as contemplated by Section 106 of T. P. Act, 1882, in so far as Ext. A-l lease deed provides for surrender of possession of the building on demand, and that therefore, no notice to quit was required. This civil revision petition is by the legal representatives of the tenant who was a co-respondent before the District Court and by the petitioner before that court whom that court held to be a transferee from the tenant of his rights under Ext. A-l lease. The correctness of this last mentioned finding is not canvassed before us. Eviction is opposed before us solely on the ground of want of quit notice. According to the learned counsel for the civil revision petitioners, Ext. A-l lease deed does not evidence a contract to the contrary as held by the learned district Judge. Therefore, it is submitted, without proper and sufficient notice determining the lease, neither the tenant nor his transferee can be evicted from the building in question. On these submissions two points alone arise for consideration, and they are:-- (i) does Ext. A-l lease, deed contain a contract to the contrary as envisaged by Section 106 of the T. P. Act. 1882; (ii) if it does not. is Section 106 of the said Act attracted to statutory tenancies governed by the Kerala Buildings (Lease and Rent Control) Act, 1965.

(3.) PROVISION in the lease deed for surrender of possession of the leasehold without demur on demand made after the expiry of the term fixed is not according to the decisions of this court in Moothorakuttv v. Ayissa Bi, 1963 Ker lj 556 and Abdul Hameed Rawther v. Bala-krishna Pillai, 1968 Ker LT 865 : (AIR 1970 Ker 40) a contract to the contrary dispensing with quit notice. The correctness of these decisions is not canvassed before us, though it was brought to our notice that in Philip v. State Bank of Travancore, 1972 Ker LT 914 : (AIR 1973 Ker 51) (FB) two of the learned Judges on the Full Bench which decided that case expressed some doubt about the correctness of the principle laid down as above said. In that view the first point mentioned above has to be answered in the negative, and we do so.