At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE V. RATNAM
Sri R. Krishnamoorthy, The Advocate General, for A.R. Lakshmanan and Rajasekaran, for Petitioner. Kulandaivelu, for Chidambarasubramanian, for Respondent.
The landlady is the petitioner in this civil revision petition, which is directed against the orders of the authorities below dismissing her application filed under Ss.10(2)(i), 10(2)(ii) and 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act.) Act 18 of 1960 as amended by Act 23 of 1973), (hereinafter referred to as 'the Act') praying for an order of eviction against the respondent herein.
2. The premises bearing Door Nos.30 and 31, Arabiculam Lane, Chinnakadai Street, Tiruchy Town, now belongs to the petitioner herein. Previously, one C.T. Senthilnathan Chettiar was the owner of the property in questions and he had let it out to the respondent herein on a monthly rent of Rs.140 payable on or before the 5th of the succeeding English calendar month. According to the case of the petitioner, the respondent had not paid the rent between June, 1976 to October, 1976 amounting to Rs.700 and such non-payment was willful. In addition, the petitioner also claimed that contrary to the terms of the tenancy, the respondent had, without the written consent of the petitioner, sub-let a portion of Door No.30 to one Haran and another portion of Door No.31 to one Shanmugham and Mani. Besides, the petitioner also pleaded that she bona fide required the premises in the occupation of the respondent for the purpose of demolition and reconstruction, as the building is in a bad condition, old and decrepit. The petitioner setting out the aforesaid grounds filed R.C.O.P.No.490 of 1976 before the Rent Controller (First Additional District Munsif), Tiruchirapalli seeking an order of eviction against the respondent herein.
3. In the counter filed by the respondent, he contended
Please Login To View The Full Judgment!
hat originally the premises belonged to CT Senthilanathan Chettiar and that he had taken the premises on tenancy agreeing to pay a rent of Rs.140 p.m. However, an application for eviction in H.R.C.O.P.No.198 of 1967 was filed before the Rent Controller (District Munsif), Tiruchirapalli by Senthilnathan Chettiar and on 28.8.1968, the matter was compromised and it had been agreed between the parties to that proceedings that the respondent can sub-let the premises in his occupation, but that he had to pay an enhanced rent of Rs.225 p.m. the respondent, therefore, pleaded that the sub-letting was authorised by the then landlord CT. Senthilnathan Chettiar and that would also be binding on the petitioner, his successor-in-interest. The wilful default attributed to the respondent in the payment of rent was disputed. The requirement of the petitioner for the purpose of demolition and reconstruction was characterised to be not bona fide. The respondent, therefore, prayed for the dismissal of the application for eviction.4. Before the Rent Controller (First Additional District Munsif), Tiruchirappalli, on behalf of the petitioner, Exs. A-1 to A-3 were marked and the Agent of the petitioner was examined as P.W.1 while on behalf of the respondent, Exs.l to B-15 were filed and the respondent and another gave evidence as P.Ws.l and 2. On a consideration of the oral as well as the documentary evidence, the learned Rent Controller found that the respondent herein did not commit wilful default in the payment of rents, that the petitioner had not established that she bona fide required the building in the occupation of the respondent for demolition and reconstruction and that the respondent had been permitted by reason of the prior proceedings in H.R.C.O.P.,No. 198 of 1967 to sublet the premises and therefore, the petitioner is not entitled to claim any relief. On those finding, the application for eviction filed by the petitioner was dismissed. Aggrieved by that, the petitioner preferred an appeal in H.R.C.C.M.A. No.69 of 1980 before the Appellate Authority (Principal Subordinate Judge), Tiruchirappalli. The Appellate Authority concurred with the conclusions of the Rent Controller and dismissed the appeal. It is the correctness of this that is questioned by the landlady in this civil revision petition.5. Before this Court, learned Advocate General in support of this civil revision petition, mainly contended that the view taken by the authorities below that the tenancy had been permitted by consent in writing of the then landlord to sub-let the premises,is incorrect, as on a proper consideration of the prior proceedings in H.R.C.O.P.No.198 of 1967 and the memo filed therein, no consent in writing of the landlord to sub-let, either express or implied, can be inferred. It was also further pointed out that the memo had not been put into court and orders passed thereon and at best, it had been certified to be a duplicate copy of the counsel, who had appeared for the then landlord, but he had not accepted the terms therein and it had also not been signed by CT. Senthilnathan Chettiar, who initiated the proceedings in H.R.C.O.P.No.198 of 1967 and under those circumstances, the authorities below were in error in holding that the predecessor in interest of the petitioner had in writing consented to the respondent sub-letting the premises. Yet another contention raised was that even on the footing that the predecessor-in-interest of the petitioner had permitted the respondent to sub-let the premises in his occupation, that could not be pressed into service in so far as the petitioner is concerned, as the petitioner had not given her consent in writing to the respondent for sub-letting the property. Reliance was also placed in this connection by the learned Advocate General upon the decision in Jagadisa Mudaliar v. Angappa Mudaliar, 79 L.W. 615.6. On the other hand, learned counsel for the respondent submitted that in the course of the prior proceedings initiated by Senthilnathan Chettiar in H.R.C.O.P. 198 of 1967, the parties had settled their disputes and only on that basis, it was also reported to the Court that the proceedings might be dismissed as settled out of court. It was also so dismissed and from this, it is clear that there had been a compromise arrived at between the parties, according to which, the respondent had been permitted by the predecessor-in-interest of the petitioner to sub-lease the property and such a permission would also avail against the petitioner. Learned Counsel also pointed out that for several years past, the respondent has been paying a rent of Rs.225 p.m. as provided in the compromise, which also permitted the respondent to sub-let, and the petitioner cannot therefore complain of the sub-letting.7.. There is no dispute that C.T.Senthilnathan Chettiar filed H.R.C.O.P. 198 of 1967 praying for an order of eviction against the respondent herein and another on several grounds and in those proceedings, he was represented by one Sri K. Raja-gopalachariar, as Counsel. That application for eviction was filed on 29.4.1967. After quite a number of adjustments, finally on 28.8.1868, the application for eviction was dismissed as not pressed as it had been settled out of Court-. This is established by Ex.B14.However, from Ex.B14,the terms upon which the settlement was effected, are not made out. Ex.B 8 is the letter dated 28.8.1968 addressed by the respondent herein to CT.Senthilanathan Chettiar, petitioner in H.R.C.O.P.No. 198 of 1967. That letter reads as follows: This letter had been signed by the respondent witnessed by one Nagarajan, examined as R.W.2, and there is a writing that it is a duplicate and the signature of K.Rajagopalachariar' Advocate for CT, Senthilnathan Chettiar, is found and the date is also mentioned as '28.8.1968'. There is nothing in Ex.B8 to indicate that it was filed before Court. The authorities below have mainly relied upon the letter Ex.B8, the terms of which have been extracted earlier, to conclude that Senthilnathan Chettiar consented to the sub-letting of the premises by the respondent in writing. Under S.10(2)(ii) of the Act, sub-letting by the tenant of the entire portion or any portion thereof after 23.10.1945 without the written consent of the landlord would be a ground for eviction. The question is, whether there is, in this case, a consent in writing by the landlord permitting the tenant to sub-let the premises. There is no dispute that Ex.B8 has not been signed by CT Senthilnathan Chettiar. Nor has it been signed by the counsel Sri K.Rajagopalachariar, who appeared for Senthilnathan Chettiar in those proceedings, accepting those terms on behalf of Senthilnathan Chettiar. All that has been done by Sri K. Rajagopalachar-iar is to write on Ex.B8 that it is a duplicate copy and nothing more, and therefore, it cannot be said that Senthilnathan Chettiar, through his counsel,had accepted whatever that has been written in Ex.B8. Even on its terms, Ex.B8 does not purport to confer any authority in writing on the respondent by Senthilnathan Chettiar to sub-let the premises in his occupation. The recital in Ex.B8 is that Senthilnathan Chettiar had consented and that recital has been made by the respondent herein. On the other hand, what is contemplated by the provisions in the Act, referred to earlier, is 'a consent in writing by the landlord'. As against that requirement, in Ex.B8 it has been stated that Senthilnathan Chettiar had consented and such a statement made by the respondent in Ex B8. with reference to Senthilnathan Chettiars consent, cannot tantamount to a consent in writing by Senthilnathan Chettiar in favour of the respondent herein permitting him to sub-let the premises in his occupation. At best, the terms of Ex.B8 can be construed to be an unilateral offer by the tenant.which has not been signed either by the landlord or by his counsel accepting it and in the absence of its having been filed into court and orders passed thereon in the course of H.R.C.,O.P. No.198 of 1967, it follows that Ex.B8 cannot be construed to be a consent in writing by Senthilnathan Chettiar enabling the respondent to sublet the premises in his occupation. What is contemplated by the provisions of the Act, as referred to earlier, is a permission in writing by the landlord authorising the tenant to sub-let the premises, but, in this case, on the recitals found in Ex.B8, it is seen that a statement has been made by the respondent to the effect that Senthilnathan Chettiar had consented. In other words, there is j no permission in writing by Senthilnathan Chettiar to the respondent permitting him to sub-let the premises, but the tenant had stated that Senthilnathan Chettiar had agreed to permit the respondent to sub-let. That will not fulfil the requirements of the Act in order to justify the subletting by the tenant in occupation. Unfortunately, the authorities below merely from the date of dismissal of H.R.C.O.P.No.198 of 1967 and the date of Ex.B8, viz. 28.8.1968, have readily assumed that Ex.B8 would constitute a permission in writing by the landlord justifying the sub-letting by the respondent. That approach is plainly erroneous and the terms found in Ex.B8 also would not satisfy the requirements of the provisions of the Act, referred to above. Learned counsel for the respondent however contended that the respondent had been paying enhanced rent at Rs.225 p.m. and the petitioner and her predecessor-in-interest had also been receiving that enhanced rent without any demur and therefore, that would also clearly indicate that the terms of Ex.B8 had been acted upon. However, learned Advocate General drew attention to the fact that even in the application for eviction, the petitioner had stated that the monthly rent payable is only Rs.140 and that the respondent had defaulted in the payment of rent for 5 months amounting to Rs.700, and therefore, there is no question of the petitioner having accepted the payment of rent by the respondent at Rs.225 p.m. as per the terms of Ex.B8. It was also further pointed out that short of consent in writing given by the landlord, any amount of acquiescence would not enable the respondent justifying the sub-letting. Reliance in this connection was placed on the decision in Reethalammal v.Arumugham Pillai, 91 L.W. 231. It is seen from the application for eviction that the petitioner had stated that the rent payable by the respondent is only Rs.140 p.m. and not Rs.225 p.m. No doubt, it is provided in Ex.B8 that the respondent should pay a rent of Rs.225 p.m. This, according to the learned counsel for the respondent, was agreed to be paid by the respondent, as he had been permitted to sub-let. A mere unilateral acceptance for payment of higher rent by the tenant on the tenant sub-letting the premises,cannot certainly be equated to the consent in writing by the landlord enabling the tenant to sub-let the premises. Even on the assumption that a higher rent had been paid by the respondent, that would not enable him to claim that he had the consent in writing of the landlord to sub-let the premises to others. The provisions of the Act are very clear and categoric, in that, in order to save a tenant from the consequence of eviction on the ground of sub-letting, it must be established that he had the consent in writing of the landlord to do so. Failing that, any other kind of agreement or arrangement not amounting to a consent in writing of the landlord permitting the tenant to sublet, would not be a substitute for such a consent in writing. Apart from it, sub-letting cannot be upheld merely on the basis of acquiescence by the landlord either with reference to the sub-letting by the respondent or even by the receipt of a higher rent, as contended by the respondent. In T.S.O.Abdul Khaderv. G.H. Rao, (1964)2 M.L.J. 288: 77 L.W. 503., it has been laid down that what is required under S.10(2)(ii) of the Act is the written consent of the landlord or estoppel by conduct, cannot be a substitute for the plain requirement of the statute regarding written consent. In Reethalammal v.K. Arumugham Pillai, 91 L.W. 23i, it has been held that in order to provide a cover for the tenant against an order of eviction on the ground of subletting, consent of the landlord for sub-letting should be established and such consent should be in writing. It has also been further pointed out that there cannot be any question of acquiescence or estoppel in such matters. Thus, even if the respondent had been paying the rents at Rs.225 p.m. and that had been accepted by the landlord, yet, that by itself would not enable the respondent to justify the sub-letting, which, in this case, is admittedly without the consent in writing of the landlord. In as much as, in this case, it has not been established by therespondent that the landlord had consented in writing for sub-letting the premises, it follows that the authorities below were in error in holding that the sub-letting by the respondent was quite in order and therefore, no order of eviction can be passed against him. The authorities below have completely misconstrued the contents of Ex.B8 and they had also not borne in mind the requirement of S.10(2)(ii) of the Act, and therefore, the orders of those authorities cannot be upheld. There is no dispute regarding the sub-letting and the respondent sought to justify it only on the ground of permission in writing of the landlord and when once such sub-letting does not have the sanction of the written consent of the landlord, the respondent cannot escape the consequence of eviction,which must inevitably follow. In this view, of the matter, it is not necessary to consider the other contention raised by the learned Advocate-General that even if the predecessor-in-little of the petitioner had consented in writing, to enable the respondent to sub-let the premises in his occupation, that would not ensure against the petitioner herein,who is the successor-in-interest, and it is therefore, unnecessary to deal with the decision reported in Jagadisa Mudaliar v.Angappa Mudaliar, 79 L.W. 615. Consequently, the civil revision petition is allowed, the orders of the authorities below are set aside and the respondent is directed to be evicted on the ground that he had unatuhorisedly and without the consent in writing of the landlord, sub-let the premises in his occupation, to other persons. The petitioner will be entitled to recover her costs throughout.8. Learned counsel for the respondent submitted that in the event of an order of eviction being passed against the respondent, he should be granted a reasonable time to vacate and hand over vacant possession of the premises in his occupation tothe petitioner. To this, learned Advocate General appearing on behalf of the petitioner, stated that the respondent, in the event of being ordered to be evicted, may be granted time till the end of April, 1989. Since the respondent has now been directed to be evicted on the ground of unauthorised sub-letting of the premises, the respondent is granted time till 30-4-1989 to vacate and hand over vacant possession of the premises in his occupation to the petitioner, subject to the respondent filing an affidavit of undertaking before this Court to that effect within 10 days from today, failing which, the petitioner will be entitled to execute the order of eviction forthwith.
"1989 (1) MLJ 438"