M THANGIAH NADAR Vs. R RAJATHI AMMAL

JUDGEMENT

(1.) THIS civil revision petition is filed by the tenant occupying Door No. 38, Chitrakkara Street, Madurai, a non-residential premises, against whom an order of eviction is passed by the appellate authority and the Principal Subordinate Judge, Madurai in C.M.A No. 288 of 1978, Originally the landlady, the respondent herein, who is the owner of the above-said premises filed an application in R.C.O.P. No. 191 of 1978 on the file of the Court of the Rent Controller and the District Munsif, Madurai Taluk for evicting the tenant on the ground that the tenant had sub-let the premises under section 10 (2) (ii) (a) of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter referred to as the Act and on the ground that the landlady requires the premises for her own business under section 10 (3) (a) (iii). The learned Rent Controller after considering the evidence let in by both the sides found against the landlady on the above-said both the grounds and dismissed the rent control petition. As against the order of dismissal the landlady filed C.M.A. No. 288 of 1978 on the file of the Court of the appellate authority and the Principal Subordinate Judge and the learned Appellate authority after considering the material on record confirmed the order of the Rent Controller regarding the claim for eviction on the ground that the landlady requires the premises for her own use and reversed the finding of the Rent Controller in respect of the claim for eviction on the ground that the tenant had sub-let the premises and ordered eviction of the tenant. THIS civil revision petition is filed by the tenant against the order of eviction passed by the appellate authority on the ground that the tenant had sub-let the building.

(2.) SINCE the landlady prayed for eviction on both the grounds viz., the requirement of the premises for her own use and on the ground the tenant had sub-let the premises and eviction was ordered only on the ground that the tenant had sub-let the premises, the landlady also challenged the finding of the appellate authority regarding the rejection of her claim for eviction on the ground that she requires the premises for her own use. Inasmuch as the claim of the landlady for eviction on the ground that she requires the building for her own business was negatived by the appellate authority and eviction was ordered on the other ground viz., sub-letting, the landlady could not have filed an appeal against the conclusion arrived at by the appellate authority with regard to the claim for eviction on the ground that she requires the premises for her own use. Hence the landlady is entitled to press her claim for eviction on the ground that she requires the premises for her own use and to show that the order of the appellate authority in this respect cannot be sustained. The 1andlady has such a right in this civil revision petition is laid down by a decision of a single judge of this Court reported in K. Venkataramani v. S. Aravamuthan and others.1 Before considering the two questions that arise for decision in this revision viz., whether the landlady is entitled to an order of eviction on the ground of subletting an" on the ground that she requires the premises for her own business certain facts will have to be stated.

(3.) IN the case reported in Petroleum Workers" Union, represented by the General Secretary v. M/s. A. Mohamed and Company, Madras.1: where the lessee, a petroleum Workers" Union allowed its sister union to conduct its meeting and thereby giving rise to a claim by the landlord for eviction on the ground of sub-letting the learned Judge observed as follows: "A sub-lease is a demise by a lessee for a lesser term than he himself has. Every lessee, however, short his term may be, may make a sub-lease unless he is restrained by the contract of the tenancy from sub-letting. if the demise is for the whole term or for a period beyond the term, it amounts to assignment. If the lessee divests himself he becomes a stranger to the demised property and he has no right to have possession delivered up to him. It is true that a covenant against subletting will restrain the assignment, but a mere covenant against sub-letting does not prohibit underletting a part of the premises, As long as the lessee remains in possession he may permit another person to use the demised premises without committing a breach of covenant, namely, not to assign, underlet or part with the possession of the demised premises." The learned Judge also quoted with approval the following observation made in the case reported in Peebles v. Crosthwaite2. "No doubt the executors of the lessee let the company into possession, but they did not part with possession themselves, and so long as it was true in fact that the lessees had not parted with possession they had committed no breach of the covenant." The learned Judge also quoted with approval the observation of Romer, J., in the case reported in Jackson v. Simons.3, which is as follows: - "A covenant against assigning the demised premises, and a covenant against parting with the possession of the demised premises are therefore distinct covenants, though all belong to the same class, and if there be any other method of disposing of the demised premises that would not amount to an assignment, under-letting or parting with possession... IN the same way, a covenant against sharing the possession is another distinct covenant, for, as already pointed out, a covenant against parting with possession of the demised premises is not broken by sharing the possession with another." The learned Judge also quoted the following passage from the case reported in Stering v. Abrahams.4: "A lessee cannot be said to part with the possession of any part of the premises unless his agreement with his licensee wholly ousts him from the legal possession of that part. If there is anything in the nature of a right to concurrent user there is no parting with possession." Eventually it was held that the lessee union permitting the other unions to conduct the meeting in the premises cannot be said to be an act of sub-letting. The tenant never parted with the legal possession of the........ premises to other unions even though they gave then permission to hold their meetings and to use the premises. IN the case reported in Vedachalam v. Kanniah5: a single Judge of this Court observed as follows: - "Where a tenant with a view to expand his business enters into partnership with others in another like business and sells the goods of that partnership also along with his, there is no contravention of the rule against sub-letting under the Act. It will be. of course, a different matter if the tenant diverts the premises to a totally different use. But this does not mean that the tenant can bring on the premises unconnected persons and allow them to trade therein and receive rents from them either as rents or as profits." On behalf of the landlady reliance is placed upon the following cases: -