K. Lubna & Ors. v. Beevi & Ors.

SANJAY KISHAN KAUL, J. 1. One Pathummakutty, the owner, let out three shop room premises, defined as Room Nos. 3/471, 3/472, 3/476, located in 1-29 in Survey 14 and Re-survey 15/6, at the eastern side o f Areekadu NirathuVazhi, Nallalam Amsom Desom, Kozhikode Taluk to one Beerankoya vide document dated 1.1.1967 for a monthly rent of Rs.75. The ownership rights in the property were transferred in fa vour of the appellants in 1986 by a registered document. This transfer/assignment was intimated to original respondent No.1 (now represented through his legal heirs) as per a registered letter in May, 1986. The allegation is that the original respondent sent rent through money orders only up to November, 1987, and stopped payment of rent thereafter. It is also alleged that the appellants required the premises bona fide ; two of the shops had been sublet by the original respondent without the consent of the appellants and the value of the suit shops had been reduced materially and permanently by the respondents. The appellants, thus, sent a legal notice dated 15.12.1987 demanding surrender of possession of suit shop rooms and arrears of rent, and ultimately filed an eviction petition before the Rent Control Court, Kozhikode for eviction under Sections 11(2), 11(3) and 11(4)(i) & 11(4)(ii) of the Kerala Buildings (Lease and Rent Control), Act, 1965 (hereinafter referred to as the ‘said Act’). 2. The trial court vide judgment dated 31.10.1994 found against the appellants on all grounds except non-payment of rent while granting a decree of eviction for all the three shops. In terms of Section 11(2)(b) of the said Act read with Section 11(2)(c) of the said Act, in case such an eviction order is passed, one month’s time or any further time as deemed proper by the Rent Control Court is granted to the tenant to deposit the arrears of rent with interest and the cost of proceeding, and in that eventuality the eviction order is to stand vacated. It does appear that the amount was thereafter deposited by the res pondents. The appellants preferred an appeal before the appellate authority. The three rooms were 3/471, 3/472 and 3/476. In respect of Room No.3/471 though bona fide need of the appellants was not found, in Room No.3/472 the bona fide need of the appellant was stated to be proved but no sub- letting was stated to have been proved, and in respect of Room No.3/ 476 the sub-letting was proved. Thus, eviction was granted in respect of rooms 3/472 and 3/476 vide order dated 9.7.1998. 971 3. The aforesaid order resulted in cross-revision petitions by both sides before the High Court of Kerala. In terms of the impugned order dated 30.10.2007 qua Room No.3/471, no bona fide need has been found and the position is the same in respect of Room No.3/472. Further, while sub-letting was not proved qua Room No. 3/472, was stated to have been proved qua Room No.3/476. The result of the aforesaid is that the endeavour of eviction from Room Nos.3/471 and 3/472 failed, while eviction order qua Room No.3/476 on the ground of sub-letting was sustained. 4. The appellants, aggrieved by this order, preferred a Spe cial Leave Petition, in which leave was granted on 4.3.2011. The respondents did not prefer any appeal, and even after leave was granted, did not file any cross-appeal/cross-objections. In the proceedings of 29.8.2019, this Court recorded the real contention of the appellants as advanced by the counsel, that there was one tenancy though there were different violations in different portions of the tenancy. The notice dated 15.12.1987 wa s stated to be a composite notice and one eviction petition was filed qua the whole premises. That being the position, it was sought to be contended before us, by inviting our attention to Section 11(4)(i) of the said A ct, that even if the sub-tenancy is created in part of the premises, the entitlement of eviction is in respect of the whole of th e premises. The relevant provision reads as under: “11. Eviction of tenants.— xxxx xxxx xxxx xxxx xxxx (4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building,— (i) if the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub-lets the entire building or any portion thereof if the lease does not confer on him any right to do so: Provided that an application under this clause shall not be made for the first time in respect of one and the same tenancy unless the landlord has sent a registered notice to the tenant intimating the contravention of the said condition of the lease and the tenant has failed to terminate the transfer or the sublease K. LUBNA & ORS. v. BEEVI & ORS. [SANJAY KISHAN KAUL, J.] as the case may be, within thirty days of the receipt of the notice or the refusal thereof.” 5. It would be useful at this stage itself to also reproduc e the definition of a ‘building’ as defined under Section 2(i) of the said Act, which reads as under: “2.Definitions.— In this Act, unless the context otherwise requires,- (1) “building” means any building or hut or part of a building or hut let or to be let separately for residential or nonresidential purpose and includes- (a) ….. (b) ….. (c) …..” 6. In order to appreciate the controversy, we deemed it appropriate to peruse the notice dated 15.12.1987, which was not on record. In the subsequent proceedings, it was found that there was some difficulty in obtaining the same and, thus, the record of the trial court was called for, to peruse the same. On a perusal of the record, what emerge s is that there was actually one tenancy and one single notice seeking eviction of the tenants on different grounds, though the allegation against the three portions are different in character. A perusal of the eviction petition also shows the same, i.e., there is a single eviction petition for the three shops/rooms, though the alleged violations are different in re spect of different portions. 7. We may notice that the plea sought to be advanced before us, that sub-letting one room would entail eviction from the entire tenancy premises, apparently was never urged before the trial court, the appellate court or the High Court, and forms a part of the pleadings before the Supreme Court, to the extent of being included in the rejoin der to the SLP. Thereafter by way of an interlocutory application,additional grounds were urged where this question was sought to be raised, and leave was granted by this Court post that stage. The net effect, in our view of all of these is that this plea has to be examined; rather this is the only plea to be examined by us in view of the finding of fact recorded by the thre e courts. 973 8. Learned counsel for the respondents endeavoured to dissuade us from examining this plea in view of it not having been ra ised at an earlier stage and thus, no factual basis being laid for the same. However, on perusal of the eviction petition, the notice and the reply, what is found is that the aspect of single tenancy was never disputed. Nor is it disputed that there were different grounds made out for different po rtions, i.e., that the single tenancy was of three rooms, but what the respondents, as tenants, were alleged to have done, to constitute violation of the terms of the lease was different for the three portions. Such allegations, however, did not find favour ultimately, except to the extent of one of the portions, i.e., Room No.3/476, where the finding reached was of subletting, by the appellate authority, reversing the finding of the tria l court on that aspect, and the High Court thereafter affirming the same. Thus, there is a concurrent finding by the final court of fact, as well as in the revision petition. 9. On the legal principle, it is trite to say that a pure questi on of law can be examined at any stage, including before this Court . If the factual foundation for a case has been laid and the legal consequences of the same have not been examined, the examination of such l egal consequences would be a pure question of law 1. 10. No doubt the legal foundation to raise a case by including it in the grounds of appeal is mandated. Such mandate was fulfilled by moving a separate application for permission to urge additional grounds, a course of action, which has already been examined by, and r eceived the imprimatur of, this Court in Chittoori Subbanna v. Kudappa Subbanna 2. 11. We may also usefully refer to what has been observed b y Lord Watson in Connecticut Fire Insurance Co. v. Kavanagh 3 in the following words: “….When a question of law is raised for the first time in a court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea. The expediency of adopting that course may be doubted when the plea cannot be disposed of without deciding nice questions 1 Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari 1950 SCR 852 2 AIR 1965 SC 1325 3 1892 A.C. 473 K. LUBNA & ORS. v. BEEVI & ORS. [SANJAY KISHAN KAUL, J.] of fact in considering which the court of ultimate review is placed in a much less advantageous position than the courts below.” 12. In our view, the aforesaid succinctly sets forth the parameters of scrutiny, where the question of law is sought to be raised at the final court stage. There are no “nice questions of fact” required to be decided in the present case which would dissuade us from examining this plea at this stage. We have set forth the undisputed facts aforesaid. Thus, the only question is whether this is a question of law which deserves to be examined, and has ramifications in the present case. 13. We may now turn to the judicial pronouncements of this Court in M. Meeramytheen & Ors. v. K. Parameswaran Pillai & Or s.4, which deals with the very said Act with which we are concerned. In the facts of that case, one single tenancy was created in relat ion to two shop rooms, while sub-tenancy was created in respect of one of the two shop rooms by the tenant. Much later, a partition was effected by virtue of which the two shops were allotted to the share of different co-sharers who joined together in the suit proceedings seeking eviction of tenants as sub-lessees. It was held that it could not be said th at on account of the partition, the original tenancy was divided and therefore, e viction could be ordered only in respect of one of the rooms that was actually sub-let, more so when the cause of action had arisen prior to the partition. The appellate court and the High Court, having granted a decre e of eviction only with respect to one shop, was stated to be a legal error committed and, thus, eviction was granted in respect of both the shops on the ground that one of the shops was sub-leased, in view o f the provision extracted hereinabove. 14. The aforesaid judgment, in our view, covers the legal principle on all fours. A bare reading of sub-para (i) of sub-section (4) of Section 11 of the said Act leaves no manner of doubt that the cause arises upon the tenant transferring his rights under a lease and sub-lets the entire building “or any portion thereof”, if the lease does not confer on him any right to do so. The proviso requires that the landlord should have sent a registered notice to the tenant intimating the contraventi on of the said condition of the lease and upon the tenant failing to terminate the transfer or the sub-lease, as the case may be, within thirty (30) days of the receipt of the notice, an application for eviction could be made by the landlord. 4 (2010) 15 SCC 359 975 Thus, sub-letting of any part of the tenanted premises give s right to eviction from the whole premises. That is how the statute reads and that is also, in our opinion, a reasonable interpretation of the same, as, if one tenancy is created it would not be appropriate to pass eviction order only in respect of a part thereof, and not the whole. The provision re ading clearly, and in view of the aforesaid judicial pronouncements, there is no doubt about this proposition. This is not a case of bona fide requirement. The findings of fact in this case are not required to be closely scrutinised as the essential facts, which have been analysed by the cour ts below, clearly show the existence of a single tenancy. Issuance of a single notice and the filing of a single eviction petition, albeit raising different grounds for different portions of the premises, is an undis puted fact. Thus, the appellant is not expected to allege sub-letting of the whole premises if the sub-letting is only in part of the premises. No doubt the appellants have not specifically claimed that by sub-letting a portion, the whole premises is liable to be vacated, but then th at is the legal consequence as is emerging from the legal position. 15. Learned counsel for the respondent did seek to contend that had he known all these consequences, he would not have accepted the judgment of the High Court, as he was maintaining the occup ation of two of the rooms and had accepted the vacation of one room. But then we squarely put to him that the additional grounds were pleade d and thereafter leave was granted. Thus, nothing prevented the respondents from filing cross-objections/cross-appeals at that stage of time, which they chose not to do despite knowing the nature of plea which has been raised as an additional ground. 16. We are, thus, of the view that the appellants are entitled to a decree of eviction for the entire premises, mentioned as tenanted premises, on the ground of the respondents having sub-let a part of the premises, and a decree is accordingly passed. 17. In the given facts of the case, we grant the responde nts six (6) months’ time to vacate the premises. 18. The appeals are accordingly allowed, leaving the parti es to bear their own costs. Ankit Gyan Appeals allowed. K. LUBNA & ORS. v. BEEVI & ORS. [SANJAY KISHAN KAUL, J.]