Saturday, 22 July 2017

Whether sub tenancy will be binding on landlord if landlord is aware of sub tenancy?

 So far as subletting is concerned, there is no case for the tenant that any consent was obtained from the landlord to sublet the premises. It is also not proved that the lease confers on the tenant a right to sublet. Mere knowledge of the landlord about the occupation of the tenanted premises by the sublessee will not create a subtenancy which is binding on the landlord. (See Ram Saran v. Pyarelal and Anr. (MANU/SC/0596/1996 : AIR 1996 SC 2361)). 
IN THE HIGH COURT OF KERALA

R.C.R.A. No. 58 of 2005

Decided On: 21.02.2005

 Mohammed Sageer
Vs.
 Prakash Thomas

Hon'ble Judges/Coram:
R. Bhaskaran and K.T. Sankaran, JJ.





1. The tenant is the revision petitioner. He challenges the concurrent findings of the Rent Control Court and the Appellate Authority under Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act').

2. The landlord contended that the petition schedule building was purchased by him as per Document No. 2381/1994 of the Sub Registrar Office, Ernakulam from Pradeep P. Thomas. The tenant was duly informed about the transfer of ownership. The tenant is occupying the building from May 1, 1993 onwards as per the agreement, wherein there is a stipulation that the tenant shall not sublease the building. In contravention of the stipulation against subletting, the tenant sublet a portion of the petition schedule building to Punnoose Mathew for running a public telephone booth. The landlord came to know of the subletting only in December, 1998. Another portion of the building was sublet to Sheriff to run real estate business and yet another portion was sublet to Sham for a computer centre. It was contended by the landlord that the tenant was collecting rent from the sublessees and was enriching himself. Ext.A-4 lawyer notice dated 1.1.1999 was issued to the tenant demanding termination of the sublease. On receipt of the notice, the tenant terminated the sublease only in respect of Sheriff and Sham. The tenant did not terminate the sublease in favour of Punnoose Mathew. Hence the Rent Control Petition was filed on the allegation that the tenant sublet a portion of the building to Punnoose Mathew without the consent of the landlord.

3. The tenant filed objection wherein he contended inter alia as follows: The landlord had already filed R.C.P. No. 167 of 1998 against the tenant under Sections 11(2)(b) and 11(4)(ii) of the Act. In that Rent Control Petition, the landlord filed an application for amendment of the Petition incorporating a plea under Section 11(4)(i) of the Act. That application for amendment was dismissed. In that application also, the landlord had raised the contention that there was subletting in favour of Punnoose Mathew, Sheriff and Sham. The dismissal of the application for amendment in R.C.P. No. 167 of 1998 would operate as res judicata so far as the present Rent Control Petition is concerned.

4. The allegation of subletting was denied by the tenant. In paragraph 5 of the objection, the tenant contended as follows:

"5. The allegations contained in para 1, 2 & 3 of the petition are false and hence denied by the respondent. The respondent had not sublet the schedule building to any one. Even if it is found that the respondent had accommodated others in the schedule room it will not be a ground for the petitioner to seek the eviction of him in that respect since the respondent is fully entitled to do so as per the terms of the rental agreement. The petitioner had suppressed the above fact from this Hon'ble Court and filed the present petition only to harass the respondent. The allegation to the effect that the respondent had sublet the building to Mr. Punnoose Mathew, Mr. Sheriff and to Mr. Sham are false and hence denied by the respondent. The respondent is not collecting any amount as rent from any one after subletting the schedule building to others. The allegation to the above effect is false and hence denied by this respondent."
5. The Rent Control Court found that the tenant has sublet a portion of the petition schedule building to Punnoose Mathew. The documentary and oral evidence in the case were considered in detail by the Rent Control Court. It was also found that the present Rent Control Petition is not barred by res judicata in view of the dismissal of the application for amendment in R.C.P. No. 167 of 1998. The contention raised by the tenant that Punnoose Mathew is his partner was negatived by the Rent Control Court, on an analysis of the evidence in the case. It was held that the landlord has discharged the burden of proof cast on him and that the tenant has not proved that Punnoose Mathew is only his partner.

6. On appeal by the tenant as R.C.A. No. 79 of 2003, the Appellate Authority confirmed the findings of the Rent Control Court. The Appellate Authority has also considered the oral and documentary evidence in great detail. The Appellate Authority held that there is nothing to show that the tenant was authorized by the landlord to sublet or prior permission of the landlord was obtained by the tenant to sublet a portion of the premises to Punnoose Mathew. The Appellate Authority confirmed the other findings of the Rent Control Court. The contention raised by the tenant that the landlord had acquiesced in Punnoose Mathew occupying a portion of the premises and therefore, there is no objectionable subletting was negatived by the Appellate Authority. It was held that the tenant has put forward a contention that Punnoose Mathew was permitted by the previous landlord to establish the telephone booth in a portion of the premises and the tenant having put forward such a plea of express consent, he cannot later turn round and contend that there was implied consent or acquiescence.

7. The counsel for the revision petitioner raised the following contentions: (a) The tenancy was to run a partnership business and therefore, the landlord cannot complain about the presence of another person in the petition schedule building. Punnoose Mathew is a partner of the tenant. (b) The alleged subtenant is not in exclusive possession of the petition schedule building or any portion thereof and therefore, there is no subletting within the meaning of Section 11 (4)(i) of the Act. (c) The sublease cannot be inferred merely because Punnoose Mathew was found to be in possession of a portion of the building. In support of the above contentions, the counsel for the petitioner relied on the decisions in Abdul Khader v. Ali (2003 (1) KLT 548) Sachindra Nath Shah v. Santhosh Kumar Bhattacharya (MANU/SC/0552/1986 : AIR 1987 SC 409), United Bank of India v. Cooks and Kelvey Properties Pvt. Ltd. (MANU/SC/0079/1995 : AIR 1995 SC 380), Helper Girdharbhai v. Saiyed Mohmad Mirasahe Kadri and Ors. (MANU/SC/0381/1987 : AIR 1987 SC 1782) and Karshaka Union v. Bahuleyan (1996 (2) KLT 747)

8. The counsel for the respondent contended that the tenant has not produced the partnership deed. He has also not produced the rent deed authorising sublease. No partnership accounts were produced by the tenant. There is no case in the objection filed by the tenant that the alleged sublessee was in possession even at the time of assignment in favour of the landlord. The counsel further contended that the Rent Control Court and the Appellate Authority have held on facts that the landlord has established sublease in favour of Punnoose Mathew and no grounds are made out for interference under Section 20 of the Act. The counsel for the respondent also relied on the decisions in Abdul Rahiman Kunju v. Rent Control Revisional Authority (1992 (2) KLT 600) Raghavan v. Sreedhara Panicker (2001 (1) KLT 772) Bharat Sales Ltd. v. Life Insurance Corporation of India (MANU/SC/0131/1998 : AIR 1998 SC 1240) and John Chandy & Co. (P) Ltd. v. John P. Thomas (MANU/SC/0382/2002 : 2002 (2) KLT 220 (SC)

9. The contention raised by the tenant that Punnoose Mathew was in possession of a portion of the building at the time of the purchase by the landlord in 1994 is not pleaded by the tenant in his objection. The tenant has also not raised a contention in the objection that the tenancy was in favour of the partnership or that Punnoose Mathew is his partner. Though the case of sublease is denied by the tenant, the averments in paragraph 5 of the objection filed by him would indicate the presence of somebody else in the petition schedule premises. There is no specific denial of the existence of a telephone booth in a portion of the petition schedule building. There is also no specific denial that Punnoose Mathew is running the telephone booth.

10. The tenant has not produced the rent deed. It was contended by the counsel for the tenant/revision petitioner that the landlord should have produced the rent deed. Since the tenant has raised a contention that there is no bar in the rent deed against sublease, the burden of establishing the same is on him. Therefore, it was his duty to produce the rent deed before Court or cause the production of the same. The non-production of the partnership deed by the tenant is also another circumstance justifying the rejection of his contention that he had formed a partnership with Punnoose Mathew. No accounts in respect of the partnership business were produced by the tenant to establish his contention of a partnership business being run in the petition schedule building. Therefore, the contention of the revision petitioner that himself and Punnoose Mathew are partners and that they are running a partnership business in the petition schedule building is liable to be rejected, as was rightly done by the Rent Control Court and the Appellate Authority.

11. The contention raised by the tenant that Punnoose Mathew is not in exclusive possession of any portion of the building is also not liable to be accepted. The facts and circumstances of the case and the oral evidence adduced in the case would indicate that Punnoose Mathew is in exclusive possession of a portion of the building. The Rent Control Court and the Appellate Authority considered the oral and documentary evidence in detail and held so. This Court is not justified in reappraising the oral evidence and in arriving at a different conclusion on facts. In fact, we have also gone through the oral evidence in the case, copies of the same having been made available to us by the counsel for the petitioner. We do not think that the Rent Control Court and the Appellate Authority were not correct in arriving at the aforesaid conclusions on facts. The decisions cited by the counsel for the petitioner are not applicable in view of the facts proved in the case.

12. The tenant put forward a contention before the authorities below, though not raised in the objection filed by him, that there was implied consent by the landlord permitting Punnoose Mathew to run the telephone booth in a portion of the petition schedule building. The tenant had also raised a contention before the authorities below that Punnoose Mathew was in exclusive possession of a portion of the building even at the time when the landlord purchased the building. This contention also does not find a place in the pleadings. There is no case for the tenant that after the landlord purchased the building Punnoose Mathew attorned to the landlord. The tenant has also no case that the partnership consisting of himself and Punnoose Mathew attorned to the landlord after the landlord purchased the property in 1994. An express consent having been put forward as an argument, the tenant is not entitled to raise a contention that there is acquiescence on the part of the landlord in the continuance of Punnoose Mathew as a subtenant in the premises.

13. The tenant has put forward several contentions which do not find a place in the pleadings. It is well-settled that where a claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward. (See Siddik Mohamed Shah v. Mr. Saran and Ors. (MANU/PR/0021/1929 : AIR 1930 PC 57 (1))). This decision of the Privy Council was followed by the Supreme Court, this Court as well as other High Courts. (See Bhagat Singh v. Jaswant Singh AIR 1966 SC 1861 and Elizabeth v. Saramma 1984 KLT 606 It is also well-settled that meticulous application of the rules of pleadings should not be insisted upon in cases coming under the Act. In Abu v. Beebi 1970 KLT 1096 it was held that in proceedings before quasi-judicial authorities, like the Rent Control Court, where meticulous application of the rules of pleading should not be insisted upon, the touchstone should be whether a party is prejudiced by insufficiency of particulars in the pleading of the other side. The same view was taken in Madhavan v. Leelamma 1991 (2) KLT 32 In K.H. Krishna Iyer and Ors. v. Parvathy Ammal and Ors. MANU/KE/0378/1988 : 1988 (2) KLJ 156 it was held that:

"... Pleadings of the parties form the foundation of their case on which issues are raised, evidence let in, and findings arrived at for deciding litigations. Parties are bound by pleadings. A case not set up cannot be allowed to be proved. If evidence is let in outside the pleadings, it cannot normally be looked into. From the pleadings, the opposite party must know what is the case he has to answer and prove. Otherwise the rules of pleadings and the provision for amendment of pleadings for deciding the real question in controversy between the parties will become meaningless. Decision of a case cannot normally be on grounds outside the pleadings. It is a case pleaded that alone could be proved. At least by inclusion of the necessary pleadings by amendment a relief cannot be granted even if there is evidence. (See Trojan & Co. v. Nagappa (MANU/SC/0005/1953 : AIR 1953 SC 235), Bhagat Singh v. Jaswant Singh 1961 (1) KLR 539 S.C.R. Tiles Manufacturers v. State of Gujarat (MANU/SC/0314/1976 : AIR 1977 SC 90) and Vinod Kumar v. Surjit Kaur (MANU/SC/0827/1987 : AIR 1987 SC 2179))."
14. In Rajamma v. Leela (1991 (2) KLT 862) it was held that in considering the pleadings a realistic and not a pedantic approach is what is called for and a liberal approach is necessary, as otherwise there would be the reason of justice becoming a casualty. The Supreme Court in Vinod Kumar Arora v. Smt. Surjit Kaur (MANU/SC/0827/1987 : AIR 1987 SC 2179) held in a Rent Control case thus:

"Both the authorities have failed to bear in mind that the pleadings of the parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case."
In the present case the tenant has put forward certain contentions which do not find a place in the pleadings or in the evidence. The landlord would be put to prejudice if such contentions are entertained.

15. The importance of pleadings cannot be lost sight of. They form the foundation for the trial of the case. Parties let in evidence on the basis of pleadings. If a party is allowed to adduce evidence on matters which are not put forward in the pleadings, the opposite party shall be put to prejudice. Trial of a case shall be a fair trial. Parties shall have a fair contest. Parties shall take the Court into confidence and shall do everything to enable the Court to dispose of the case completely and effectually. It is unfair to put forward contentions on facts, which are not covered by pleadings and evidence and in respect of which the opposite party is put in the dark. Courts would be slow in entertaining such contentions.

16. So far as subletting is concerned, there is no case for the tenant that any consent was obtained from the landlord to sublet the premises. It is also not proved that the lease confers on the tenant a right to sublet. Mere knowledge of the landlord about the occupation of the tenanted premises by the sublessee will not create a subtenancy which is binding on the landlord. (See Ram Saran v. Pyarelal and Anr. (MANU/SC/0596/1996 : AIR 1996 SC 2361)). In Kunhikrishnan v. Madhavi (1991 (1) KLT 515) this Court held that on establishing that the tenant has transferred exclusive possession to another person, the Court may legitimately draw a presumption under Section 114 of the Evidence Act that the transfer was for valuable consideration so as to shift the burden of proof to the tenant to disprove the prima facie case of subletting established by the landlord. The terms and conditions under which the subtenant has occupied the premises may be unknown to the landlord and known only to the tenant and the subtenant. If the landlord has to prove positively by adducing evidence that the transfer of possession was for valuable consideration, it may not be possible to prove subletting in any case except in rarest of rare cases. Same is the view taken by this Court in Abdul Rahiman Kunju v. Rent Control Revisional Authority (1992 (2) KLT 600).

17. In Bharat Sales Ltd. v. Life Insurance Corporation of India (MANU/SC/0131/1998 : AIR 1998 SC 1240), the Supreme Court held that to prove subletting, production of affirmative evidence showing payment of monetary consideration by the subtenant to the tenant is not necessary. The law does not require such payment to be proved by affirmative evidence and the Court is permitted to draw its own inference upon the facts of the case proved at the trial.

18. The counsel for the landlord contended that the telephone booth was installed in the year 1993 by the alleged subtenant, while the Rent Control Petition was filed only in the year 2001. It is the case of the tenant that the landlord is residing in the house situated just opposite to the petition schedule building. Counsel contends, there is no reason to believe, therefore, that the landlord did not know about the sublease, if any. Sublease without the consent of the landlord is a ground for eviction under Section 11(4)(i) of the Act. No period of limitation is prescribed for filing a Rent Control Petition on the ground of subletting. Subletting by the tenant does not really create a new right in respect of the building in favour of the landlord; on the other hand, the tenant loses the protection of the Act if he sublets. In the event of losing such protection, he should definitely suffer the consequences as provided in Section 11(4)(i). As held in Abdul Rahiman Kunju v. Rent Control Revisional Authority (1992 (2) KLT 600) the duration of possession of the building, however long it may be, is no reason to deny the landlord his right to get eviction, provided the ingredients of Section 11(4)(i) are established.

19. In John Chandy & Co. (P) Ltd. v. John P. Thomas (MANU/SC/0382/2002 : 2002 (2) KLT 220 the Supreme Court held that consent as envisaged under Section 11(4)(i) of the Act (Kerala Act) would mean consent with some positive act which may lead to the inference of conferring right on the tenant to sublet the premises. Mere inaction would not be sufficient to amount to implied consent on the part of the landlord.

20. This Court held in Raghavan v. Sreedhara Panicker 2001 (1) KLT 772 that subtenant is not a tenant as defined in the Act and the subtenant gets no protection under the Act. It is further held that to escape from the tentacles of Section 11(4)(i)of the Act, sublease should be one authorized by the lease or in the alternative, made with the consent of the landlord. It is not possible to import the theory of implied consent or acquiescence while dealing with a claim under Section 11(4)(i) of the Act.

21. Though the tenant has raised a contention before the authorities below that the Rent Control Petition is barred by res judicata in view of the dismissal of the application for amendment filed by the landlord in R.C.P. No. 167 of 1998, the counsel for the revision petitioner did not press that contention in the Revision before us.

22. We are of the view that the authorities below were justified in negativing the contentions put forward by the tenant and in ordering eviction. No grounds are made out for invoking the revisional jurisdiction of this Court under Section 20 of the Act. The Rent Control Revision is accordingly dismissed. No costs.

23. Taking into account the facts and circumstances of the case, we grant three months' time to the revision petitioner to vacate the petition schedule building. The revision petitioner shall file an affidavit before the Rent Control Court within a period of three weeks from today undertaking to vacate the building before the expiry of the period of three months. The revision petitioner shall also deposit the arrears of rent, if any, within a period of one month from today. If the above conditions are not complied with, the order of eviction can be executed forthwith.



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