9911796707
TMI Blog2002 (4) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... In the year 1949 Shri P. George, grand father of the respondent rented out the premises to the appellant-company which was sub-let to different sub- tenants from time to time. The respondent gave notice to the appellant on 17.11.1981 to terminate the sub-lease arrangements but the tenant failed to comply with the notice. Ultimately John P. Thomas-respondent filed RCP No. 16 of 1982 in the Court of Rent Controller. Kottayam. The eviction was sought on the ground that the appellant- tenant had transferred his rights creating sub-leases in favour of several persons without the consent of the landlord. One of the sub-tenants had even been running a printing press in the premises whereas according to the case of the landlord the premises were let out to the appellant for its use as an office and godown. The petition was contested but the fact of sub-letting was not denied. On the other hand, it was pleaded that one sub-lease was created initially in 1949 itself when the premises were taken by the appellant on rent which fact was within the knowledge of the grand father and the father of the respondent as well as that of the present respondent. Admittedly, a few more sub-leases were crea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f CPW2 who was formerly one of the Directors of the appellant company and was related to the parties and according to whom the rent arrangement was made in his presence which enabled the tenant-appellant to sub-let the premises. The appellate court ultimately held that having regard to the long course of conduct of parties it was satisfied that contract of tenancy allowed sub-letting by the tenant. It further observed even assuming that there was specific stipulation in the contract of tenancy prohibiting sub-letting, the landlord by acceptance of rent must be deemed to have waived his right to claim eviction on the ground of sub-letting..... 6. Aggrieved by the order passed by the appellate authority the respondent preferred a revision under Section 20 of the Kerala Buildings (Lease And Rent Control) Act 1965. The revision was allowed as indicated earlier holding that the sub-leases were created in contravention of Section 11 (4)(i) of the Act. The revisional court found that the tenant failed to establish that in terms of lease they were entitled to sub-let the accommodation. Mere inaction or failure on the part of the landlord to initiate any action in the matter would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kerala Buildings (Lease and Rent Control) Act 1965 may be wider than that under Section 115 CPC but it does not entitle the court to re-appreciate the evidence and substitute its own conclusion in place of the appellate authority. The proposition of law as laid down in the above-noted decision cannot be in dispute but in the present case we find that the trial court had recorded its finding after appraisal of whole statement including the cross-examination of the witness whereas the appellate court took a different view ignoring the major part of the statement of the witness, particularly made in the cross-examination which was specifically referred to by the trial court in its order. Such a finding as recorded by the appellate court certainly leans to be a perverse finding. The decision in the case of Ubaiba (supra) would be of no help to the appellant on the facts of the present case. 8. Yet another fact which attracts the attention of the Court is that CPW2 had made the statement about sub-letting some time in the year 1949. It will have no bearing on the merits of the present case. The Kerala Building (Lease and Rent Control) Act 1965 came into force in the year 1965. Sub-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ext the observations made by the appellate court that no objection was taken by the landlord for the last 32 years is not correct. The respondent had served a notice on the appellant-tenant in 1981 which is a period of 10 years from 1971 and 7 years from 1974. It is in so far factual position and finding of inaction for 32 years on the part of the landlord is concerned. 10. We may now turn to the question of implied consent in the background of the relevant provision. 11. Section 11 (4) (i) of the Kerala Buildings (Lease and Rent Control) Act 1965 reads as under: 11(4)(i). 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..... A perusal of the relevant provision as quoted above clearly indicates that the landlord can claim possession of the building from the tenant in case of sub-letting by the tenant without the consent of the landlord, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t see what has been said about Acquiescence. It is as follows: Mere inactivity on the part of a defendant is not to be construed as acquiescence in delay by the plaintiff. sleeping dogs, in the form of sleeping plaintiffs, need not be aroused by defendants from their slumbers (per Roskill LJ in Compagnie Fran oise de Television v. Thorn Consumer Electronics Ltd. 1978 RCP 735; Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corporation 1979 3 All ER 194 per Donaldson J. It may also answer the observation of the appellate court that the landlord by inaction is to be taken to have waived his right to take any action against the tenant. 12. A distinction has also been drawn between 'Acquiescence' and 'Consent'. It is in relation to a dispute between a landlord and a tenant and we again refer to Words and Phrases Legally Defined Vol.1 Third Ed. Page 314 The Landlord and Tenant Act 1954, Section 23(4) is concerned with a situation where an immediate landlord or his predecessor in title has 'consented' to a breach of covenant, or the immediate landlord has acquiesced in it.] 'I agree.....that in the context of Section 23( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not lead to any implied inference or consent of sub-lease in favour of the sub-tenant. For this conclusion no doubt the letters of the landlord had also been referred to by which sub-tenancy was not accepted by the landlord yet the fact remains that Court did not come to the conclusion that that before writing of those letters it was to be taken a case of sub-tenancy by conduct. The fact is that knowledge of possession or a part of the accommodation with the Trust and the acceptance of the part of the rent by cheque from the Trust were not considered conclusive of an inference of consent for sub-tenancy. Yet another case relied upon by the learned counsel for the respondent is Ram Saran v. Pyare Lal and Anr. - [1996]1SCR501 equivalent to In this case also the tenant surrendered his tenancy rights in favour of a registered Society without consent of the landlord. The landlord had also started accepting the rent tendered by the tenant in the name of the registered society. It was held that no inference of authorised sub-tenancy could be drawn nor inference of implied consent and it was held that the landlord was not estopped from seeking eviction on the ground of unauthorised sub-le ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
