KOLLIPARA PARDHASARADHI Vs. ALAMURI VENKATRATNAM

JUDGEMENT

(1.) The petitioner is the landlord. He filed an application for ejectment of the respondent on the ground that the respondent committed wilful default in payment of rent and he also sub-let the premises without the consent of the petitioner. Both the courts have concurrently found against the petitioner. Hence this revision.

(2.) In this revision petition Sri Narayana Rao, learned counsel for the petitioner, did not assail the findings on the wilful default, but he contended that Sec. 10(2) (ii) of the Andhra Pradesh Buildings, (Lease Rent and Eviction) Control Act, 1960 (for short, the Act") postulates that a landlord who seeks to evict his tenant shall satisfy that the tenant has, without the written consent of the landlord, transferred his right under the lease or sub-let the entire building or any portion thereof if the lease does not confer on him any right to do so. In this case, the tenant admitted that he sub-let the premises for a short while. In view of this admission, the lower court did not consider this aspect of the matter and rejected the claim of the petitioner for ejectment on the ground that he did not prove sub-letting It is true that under Sec 10(2) (ii) of the Act the legislature postulates that the written consent of the landlord to transfer his leasehold right under the lease or to sub-let the entire building or any portion thereof, if the lease does not confer on him any right to do so, is necessary. Therefore, it is for the landlord to plead and prove that the tenant has sub-let the entire premises or portion thereof without his consent (written). If the tenant admits of the sub-letting, it is for the tenant to es:ablish that the landlord has given such consent without which it is impermeable for him to transfer his leasehold right or to sublet the entire or a portion of the building to third parties. True, the language couched in the statute is that the requirement of consent of the landlord in writing is necessary. It is open to she parties to agree to sublet and it is common knowledge that many a tenant or landlord are unlettered and out of mutual trust the tenant may not take the consent in writing or may not be aware of the need to obtain or give the consent in writing. The right to permit a tenant to sublet is a permissive statutory right conferred on the landlord. It is open to him to give up that tight or he may waive the duty of his tenant to obtain his consent in writing. !t is not opposed to public policy nor per se illegal Thereforo, each case has to be considered on its facts and given circumstances. It is far the tenant to plead that thereis a consent given or it is part of the covenant of the lease and tha parties can adduce evidence in that regard and the court could consider any rely thereon if found acceptable. in this case, the lower court has found, as a fact, that the petitioner has not proved that the respondent has sub-let the premises. The respondent himself in his evidence has stated thus. "The said Saibaba had put his laundry in the schedule premises with my consent. To that i obtained permission from P W 1 for putting up the same by Saibaba for a short while". Though it is staled that the petitioner has given hisconse.it it was not taken in writing. But in tnis case, it does not really mean sub-letting but is, only, giving licence to one Saibaba for a short- while to do laundrying. There is a matked distinction between lease and licence, This case cannot be considered to be sub-latting. He did neither part with exelusive possession nor transferred his leasehold rights nor right to enjoy the demised premises. In these circumstances, it cannot be said that the order of the lower court is vitiated by any error of jurisdiction.

(3.) The civil revision petition is accordingly dismissed. But in the circumstances, without costs.