KOYAMON Vs. MOIDEENKUTTY AND ORS.

JUDGEMENT

(1.) THE Petitioners are the legal representatives of the first Respondent in R.C.O.P. No. 238 of 1972 on the file of the Munsiff, Kozhikode -1. The property involved in the case is a building which was taken on rent by the first Respondent and one C.K. Aboobacker Haji on 20th June 1953 from the then owner of the property. The rights of Aboobacker Haji devolved on the first Respondent. The original lessors transferred their rights to the Petitioners in R.C.O.P. 238/72. The rent which was originally fixed at Rs. 300 was subsequently raised at Rs. 450. The first Respondent attorned to the Petitioners. The petition was filed under Section 11(2)(a) and 4(i) of the Kerala Buildings (Lease and Rent Control) Act. The case of the Petitioner was that rent was kept in arrears after March 1972 and that the first Respondent sub -let portions of the building at a higher rent to Respondents 2 to 4. A notice was issued terminating the tenancy and in due course, the petition for eviction was filed. The first Respondent admitted the lease. According to him, even before the lease in his favour, the building was being used as a lodge and specific permission had been given by the then lessors to the first Respondent for entrusting portions of the building to third parties. The existence of arrears of rent is disputed. The 2nd Respondent to whom one of the rooms is alleged to have been sublet is a travel agent engaged in booking tickets by rail and ship. He has been occupying one of the rooms from 1955, in connection with his job. He is only a lodger and not a sublessee. Though a board and a phone are provided in the room, the understanding is that they would be removed as and when required by the first Respondent. The third Respondent is also in possession of a room in the building since 1957. He also is a lodger, and not a lessee. The 4th Respondent constructed a shed outside the building and was carrying on a trade for the last 15 years. The shed was constructed with the consent of the predecessor -in -interest of the Petitioners. The first Respondent has nothing to do with the occupation of the shed by the 4th Respondent except that he permitted an electric connection to be taken from a room in the building and was receiving one rupee per month from the 4th Respondent as electric charges. According to the first Respondent, the Petitioners were aware of the occupation of Respondents 2 to 4 and it was understood that himself and his predecessor had waived the conditions if any attached to the lease. Respondents 2 to 4 put forward similar contentions. The Rent Control Court held that the Petitioners did not establish that there was a condition against sublease. The circumstances proved in the case would indicate that the first Respondent was authorised to conduct a lodge in the petition schedule building. The court also held that Respondents 2 and 3 were in occupation of portions of the building at least from 1960 and 1961 respectively. The Rent Control Court further held that the, occupation by Respondents 2 to 4 was not as sublessees and, therefore, the Petitioners were not entitled to get delivery of possession of the building under Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act. The Rent Control Court, however, found that the first Respondent had kept arrears of rent and, therefore, eviction under Section 11(2)(b) of the Act was allowed. Against the above order, the Petitioners filed appeal before the Appellate authority. By that time, the first Respondent died and his legal representatives were impleaded as Respondents. Respondents 14 to 16 in appeal were Respondents 2 to 4 before the Rent Control Court. The Appellate Authority reversed the findings of the Rent Control Court and held that Respondents 2 to 4 before the Rent Control Court were sublessees and the subleases were without the consent of the original lessor. Eviction was ordered on the ground of subleases also. The above finding was confirmed in revision by the Additional District Judge, Kozhikode, in C.R.P. 84 of 1976. It is this order that is being challenged by the legal representatives of the original first Respondent in the present revision petition.

(2.) THE only question involved is whether Respondents 2 to 4 are sublessees and whether the subleases were without the concurrence of the original lessor. The first Respondent took the stand that since the building was even prior to the lease in his favour being used as a lodging house, a permission to let to strangers can be presumed. He also put forward a case that the original lessor had agreed to the granting of the subleases which are now challenged.

(3.) THE contention put forward on behalf of the revision Petitioners is that even assuming that Respondents 2 and 3 are occupying the room, they are only in the position of lodgers and not lessees under the Act. Reference is made to the definition of a 'building' in Section 2(1) of the Act. The definition excludes a room in a hotel or lodge. It is argued that in the light of the definition, letting of a room in a hotel or lodge to strangers is not a ground for evicting the tenant who has taken a lease of the whole building. Reliance is placed on the decision of the Supreme Court in Associated Hotels of India v. R.N. Kapoor : A.I.R. 1959 S.C. 1262. The case related to a room in the Imperial Hotel, New Delhi. R.N. Kapoor, the Respondent in that case was the Proprietor of a business carried on under the name 'Madam Janes'. Under an agreement with the Appellant, he occupied certain spaces in the 'Ladies and Gents' cloak rooms of the Imperial Hotel on a rent of Rs. 700 per month. He filed an application before the Rent Controller, New Delhi, under the Delhi and Ajmer -Merwara Rent Control Act (19 of 1947) alleging that he was a tenant of the spaces in the cloak room under the Appellant and claiming for a fixation of standard rent. The Appellant opposed the application contending that the Act did not apply and, therefore, no standard rent could be fixed. The contention put forward on behalf of Appellant was that being a room in the hotel, the Act did not apply. The Supreme Court by a majority upheld the contentions of the Appellant that the space occupied by the Respondent was a room in a hotel and dismissed the application for fixation of standard rent. The decision only means that a person who is occupying a room in a hotel is not a tenant of premises, entitled to rights under the Delhi and Ajmir -Merwara Rent Control Act. Incidentally the Supreme Court considered what a room in a hotel should satisfy. It was held that a room must fulfil two conditions: (1) it must be part of a hotel in the physical sense and (2) its uses must be connected with the general purpose of the hotel of which it is a part. The question whether transfer of exclusive possession of a room in the building on agreement to pay rent amounted to subletting, did not arise in the case. The dispute was between the lessee of the building and the occupier of one of the rooms regarding the rights of the latter to get fair rent fixed.