K.Lubna vs Beevi on 13 January, 2020


Supreme Court of India

K.Lubna vs Beevi on 13 January, 2020

Author: Sanjay Kishan Kaul

Bench: Sanjay Kishan Kaul, K.M. Joseph

                                                                                REPORTABLE

                                       IN THE SUPREME COURT OF INDIA
                                        CIVILAPPELLATE JURISDICTION

                                        CIVIL APPEAL NOs.2442-2443 OF 2011



                         K. LUBNA & ORS.                                     … Appellants



                                                         VERSUS



                         BEEVI & ORS.                                        …Respondents



                                                   JUDGMENT

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 of Areekadu NirathuVazhi,

Nallalam Amsom Desom, Kozhikode Taluk to one Beerankoya vide
Signature Not Verified

document dated 1.1.1967 for a monthly rent of Rs.75. The ownership
Digitally signed by
ANITA MALHOTRA
Date: 2020.01.13
17:48:02 IST
Reason:

rights in the property were transferred in favour of the appellants in 1986

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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
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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 respondents. 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.

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

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eviction order qua Room No.3/476 on the ground of sub-letting was

sustained.

4. The appellants, aggrieved by this order, preferred a Special 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 was

stated to be a composite notice and one eviction petition was filed quathe

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 Act, that

even if the sub-tenancy is created in part of the premises, the entitlement

of eviction is in respect of the whole of the premises. The relevant

provision reads as under:

“11. Eviction of tenants.—

xxxx xxxx xxxx xxxx xxxx

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(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 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 reproduce 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
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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 emerges 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 respect 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 rejoinder 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
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only plea to be examined by us in view of the finding of fact recorded by

the three courts.

8. Learned counsel for the respondents endeavoured to dissuade us

from examining this plea in view of it not having been raised 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 portions, 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 trial 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.

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9. On the legal principle, it is trite to say that a pure question 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 legal

consequences would be a pure question of law1.

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 received the

imprimatur of, this Court in Chittoori Subbanna v. Kudappa Subbanna2.

11. We may also usefully refer to what has been observed by 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
1Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari 1950 SCR 852
2AIR 1965 SC 1325
31892 A.C. 473

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that course may be doubted when the plea cannot be disposed of without
deciding nice questions 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 & Ors. 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 relation 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-

4(2010) 15 SCC 359

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lessees. It was held that it could not be said that on account of the

partition, the original tenancy was divided and therefore, eviction 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 decree 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 of 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 contravention 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

10
of the notice, an application for eviction could be made by the landlord.

Thus, sub-letting of any part of the tenanted premises gives 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 reading

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 courts 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 undisputed 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 that is the legal consequence as is

emerging from the legal position.

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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 occupation 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 pleaded 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 respondents six (6)

months’ time to vacate the premises.

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18. The appeals are accordingly allowed, leaving the parties to bear

their own costs.

………………………………J.

[Sanjay Kishan Kaul]

………………………………J.

[K.M. Joseph]
New Delhi.

January 13, 2020.

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