T DAMODARAN Vs. KAMALAMMAL

JUDGEMENT

(1.) THIS civil revision petition is filed by the tenant one T. Damodaran, Proprietor, Kamaladhar and Phonex Traders, and 3 others against whom an order of eviction was passed by the appellate authority and the IV Judge, Court of Small Causes, Madras in H. R. A. No. 1235 of 1980.

(2.) THE facts of the case are briefly as follows: . THE landlady, the respondent herein, filed an application in H. R. C. No. 3571 of 1979 against T. Damodaran, Proprietor, Kamaladhar Press & Phonex Traders (the first civil revision petitioner) under sections 10 (2) (i) and 10 (2) (ii) (a) of the Tamil Nadu Buildings (Lease and Rent Control) Act XXIII of 1960 as amended by Act XXIII of 1973, hereinafter referred to as the Act, in respect of the premises bearing door No. 245, Thambu Chetty Street, Madras-I. THE case of the landlady is that the above-said premises was let out to the first civil revision petitioner for non-residential purpose on a monthly rental of Rs. 138 and the tenancy is according to the English calendar month. THE tenant is always irregular in payment of rent and he is in default in payment of rent from 1st June, 1979 to 30th September, 1979 and as such he has committed wilful default in payment of rent. THE landlady also contended that the tenant had sublet the premises to the civil revision petitioners 2 to 4 without her written consent and as such he is liable to be evicted on this ground also. In the counter statement the first civil revision petitioner contended that he is not the tenant under the landlady in his individual capacity but a firm under the name and style of Kamaladhar Press is the tenant. He further stated in his counter statement that he has transferred the rights, liabilities, responsibilities, assets, machineries, stock in trade, goodwill and other rights accrued therein to the civil revision petitioners 2 to 4 as early as on 29th October, 1979, which is well-known to the landlady. She was also present at the time of inauguration of the firm by the civil revision petitioners 2 to 4 on 29th October, 1979, and as such there is no subletting on the part of the first civil revision petitioner. He has also contended that the allegation regarding the wilful default is not true and that from 1st June, 1979 to 30th September, 1979 he had paid the rent to the landlady for which receipts had not been passed by the landlady. His further contention is that the landlady is keeping Rs. 560 as advance which is more than a month.s rent in respect of the tenancy. THE landlady is not in the habit of issuing receipts and in good faith the first civil revision petitioner used to send the rent by bearer. THE rent was raised to Rs. 150 from July, 1979 onwards and he paid the increased rent. THE rent for October, 1979 was sent by M. O. which was refused by the landlady. Hence it is contended that there is no wilful default on the part of the tenant in payment of rent. THE tenant (the first civil revision petitioner) also contended that he and civil revision petitioners 2 to 4 met the landlady in October 1979 and informed her that they are prepared to pay the enhanced advance and also the enhanced rent. But the landlady demanded exorbitant pugree which the civil revision petitioners were not willing to pay. Hence the landlady has come forward with the rent control application.

(3.) IN this civil revision petition the order of eviction of the tenants in occupation viz., the civil revision petitioners 2 to 4 under section 10 (2) (ii) (a) passed by the appellate authority is being questioned. Before examining the merits of the order of the Appellate Authority it will be useful to state certain facts based on the evidence that may have a bearing on the conclus on. The premises belongs to the respondent landlady and the same was originally leased out to the first civil revision petitioner T. Damodaran. The case of the tenant is that the lease is to the firm Kamaladhar Press and Phonex Traders of which T. Damodaran is the Proprietor and the lease is not to the individual. IN support of this contention it is pointed out that the receipts for the payment of rent viz Exhibit 1 series stand in the name of Kamaladhar Press and Phonex Traders. It is the case of the tenant that by means of document Exhibit B-4 the business under the name and style of Kamaladhar Press and Phonex Traders was transferred as a going concern to the civil revision petitioners 2 to 4 and even after such a transfer Kamaladhar Press and Phonex Traders existed and the transferee continued the business under the same name and style and as such there is no transfer of right in the lease or sub-letting. Such an assignment as a going concern according to the tenant will not amount to a transfer of right under the lease since the business is carried on under the same name and there is no sub-letting since the transferor did not retain any interest in respect of the firm. The first civil revision petitioner admits of having transferred the firm viz., Kamaladhar Press and Phonex Traders to the civil revision petitioners 2 to 4. On behalf of the landlady it is contended that such a transfer will amount to a transfer of rights under the lease coming within the mischief of section 10 (2) (ii) (a) of the Act. Reliance is placed upon the case reported in Venkatarama Iyer v. Reuters Limited1, in which Subba Rao, J., as he then was, held that if a company doing business in a particular premises (taken on lease) transfers its business as a going concern to another company and also the net assets for consideration and thereafter the transferee company takes over the business and carries on business in the premises let out to the former company it cannot be said that there was no transfer of the right of the former company under the lease to the latter company and on such transfer the tenant is liable to be evicted. IN M. Rodgers v. M. Prakash Rao Naidu2, a tenant who was running a press in the buildings (a business premises) with his machinery, stopped the business and his previous manager was running a press as a lessee of the machinery. The petitioner/ tenant had no share in that business. IN an application for eviction on the ground of subletting Alagiriswami, J., as he then was, held that the tenant is liable to be evicted on the ground of subletting. Alagiriswami, J., expressed the view that the machinery cannot be run unless it is placed in the premises where it is situate. So, the lessee of the machinery also gets the advantage of the use of the business premises also. Therefore the lease amount which the lessor receives should contain in it an element of rent for the building which is used to house the machinery. It is unbelievable that the lessor would take rent for the use of the machinery alone and not take any rent for the use of the business premises and agree to pay the rent himself It is not an answer under these circumstances against the charge of subletting to say that the lesser does not take anything separately from the lessee by way of rent for the building itself or that he himself is paying the rent to the landlord and sublessee is not paying the rent to the landlord. IN Pandit Kishan Lal v. Ganpat Ram Jhosla and another3, the Supreme Court observed as follows: