Madras High Court
R.Susila vs S.Kantilal on 24 August, 2023
C.R.P.No.716 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.No.716 of 2013
1. R.Susila, Proprietrix,
Suriya Fertilizers,
22, Brethapet Road,
Vepery, Chennai-600 007.
2. M/s.Vijaya Kumar & Co.,
Rep.by its Managing Partner,
72, Govindappa Naicken Street,
Chennai-600 001. ... Petitioners
Vs.
1. S.Kantilal
2. S.Tejraj
3. S.Babulal
4. S.Jayantilal
5. S.Kishore Kumar ... Respondents
PRAYER: Civil Revision Petition is filed under Section 25 of the Tamil
Nadu Buildings (Lease and Rent Control) Act, 1960, against the order
dated 21.12.2012 passed in R.C.A.No.394 of 2003 by the learned VII
1/9
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C.R.P.No.716 of 2013
Judge, Court of Small Causes, Chennai, confirmed in order dated
06.02.2003 passed in R.C.O.P.No.850 of 1996 by the learned XVI Judge,
Court of Small Causes, Chennai.
For Petitioners : Mr.K.G.Vasudevan
For Respondents : Mr.A.K.Raghavalu
ORDER
The original papers had been lost by the Registry. Therefore, the
typed set of papers had been received from Mr.A.K.Raghavalu, the
learned counsel appearing for the respondents and the Civil Revision
Petition papers are reconstructed.
2. This Civil Revision Petition arises against the concurrent
finding of eviction in R.C.O.P.No.850 of 1996 dated 06.02.2003 on the
file of the XVI Court of Small Causes, Chennai, as confirmed in
R.C.A.No.394 of 2003 dated 21.12.2012 on the file of the VII Court of
Small Causes, Chennai.
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C.R.P.No.716 of 2013
3. The jural relationship between the petitioners and the
respondents is not in dispute. The petitioner in R.C.O.P., Mrs.Pyari Bai is
a landlord and Mrs.R.Susila was a tenant. The only point urged before
the trial Court was that R.Susila, without the written consent of the
landlord, had sublet the property to the 2nd respondent.
4. The Courts below have come to a conclusion that the factum of
subletting has been proved from the evidence of R.W.1 and R.W.2. In
addition, the Courts below have returned a finding that the partnership
deed marked under Exs.R2 to R7 shows that the 1st petitioner/tenant had
parted the possession of the demised premises to the 2nd petitioner. The
parting of possession is without the Written consent of the landlord. By
the provisions of the Tamil Nadu Buildings (Lease and Rent Control)
Act, 1960, if the written consent is not obtained for the purpose of
subletting or if there is no authorisation permitting the subletting, it
invites wrath of Section 10(2)(ii)(a) of the Act.
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C.R.P.No.716 of 2013
5. I heard Mr.K.G.Vasudevan, the learned counsel appearing for
the petitioners, tenants and Mr.A.K.Raghavalu, the learned counsel
appearing for the respondents, landlords. I have carefully gone through
the records.
6. Mr.K.G.Vasudevan, would submit that though there is no written
consent for the purpose of subletting, the very fact that the landlord was
in occupation of a premises opposite to the demised premises and the
business was being carried on for a long time by the petitioners 1 & 2 in
the demised premises deems permission. To that end, he would rely upon
the judgment of the Supreme Court in A.S.Sulochana vs.
C.Dharmalingam, AIR 1987 SCC 242.
7. Mr.A.K.Raghavalu, would submit that as required by the Act,
written consent is necessary and oral consent or acquiescence is not a
defence in a proceeding for eviction on the ground of sub-tenancy.
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C.R.P.No.716 of 2013
8. A perusal of the record shows that the 1st petitioner is the tenant.
Without the permission of the landlord, she had parted possession and
handed over it to the 2nd petitioner. As per the Tamil Nadu Buildings
(Lease and Rent Control) Act, it demands that such sub-tenancy to be
saved from eviction proceedings, there must be a written consent. In this
particular case, there is no written consent from the landlord. Therefore,
the provisions of the statute stands satisfied. Apart from that, the Courts
below have concurrently found that the sub-tenancy has been proved.
Sitting under Section 25 of the Tamil Nadu Buildings (Lease and Rent
Control) Act, I cannot re-appreciate the evidence in the matter, unless and
until the same is perverse or arbitrary. A reading of the judgment in the
records does not lead me to the conclusion that it is perverse. Therefore,
the finding of the sub-tenancy is confirmed.
9. Now I have to turn to the next argument of Mr.K.G.Vasudevan
that the judgment in A.S.Sulochana vs. C.Dharmalingam, AIR 1987
SCC 242 comes to his rescue. A careful perusal of the facts in the
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C.R.P.No.716 of 2013
aforesaid judgment would show that the appellant before the Supreme
Court and the respondent were the legal representatives of the original
landlord and the original tenant. The Supreme Court was pleased to allow
the appeal on finding that as long as the original landlord and the original
tenant were alive, no proceedings were initiated for eviction on the
ground of sub-tenancy. The Court had drawn the conclusion that the
original landlord should have granted permission for the sub-tenancy. It
is in those peculiar circumstances, the judgment has come about. Apart
from this, I am of the view that when the legislature have clearly stated
that the written consent is necessary and no written consent has been
produced before the Court, consequences of the Act must follow.
10. On the ground that the landlord was residing opposite to the
demised premises and therefore, should have had knowledge of the
sub-tenancy also does not appeal to me. Acquiescence is a principle in
equity and not when the black letter law is clear. As I have already
pointed out, the law requires a written consent and a written consent not
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C.R.P.No.716 of 2013
being available, consequences should follow. Acquiescence cannot be a
defence. In any event, in order to acquiescence to apply, the tenant must
prove that the landlord was aware of the secretive agreement between the
petitioners 1 & 2 and still kept quiet.
11. By the very nature of the things, the sub-tenancy is a secretive
arrangement between the chief tenant and the sub-tenant. Therefore,
unless and until there is positive proof that the secretive arrangement was
made known to the landlord, I cannot come to a conclusion that he had
knowledge of the same by the mere fact that he was residing in the
opposite premises. Both the points fail. I have no other option to confirm
the order in R.C.A.No.394 of 2003 dated 21.12.2012 and that of
R.C.O.P.No.850 of 1996 dated 06.02.2003.
12. At this stage, Mr.K.G.Vasudevan, requests that sufficient time
be granted for the tenants to vacate and handover the possession. Since
the petition has been pending from 1996, four months time can be
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C.R.P.No.716 of 2013
granted to the tenant to vacate and handover the possession, it would be
in the interest of justice. Time is granted subject to the petitioners filing
an affidavit of undertaking that they shall not put any third party in
possession and they shall clear all the arrears if any, with respect to the
payment of rents. Time for filing the affidavit of undertaking is granted
till 31.08.2023.
13. With the above directions, this Civil Revision Petition is
dismissed. No costs.
24.08.2023
Index:Yes/No
Speaking Order :Yes/No
Neutral Citation:Yes/No
kj
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C.R.P.No.716 of 2013
V.LAKSHMINARAYANAN,J.
Kj
To
1. VII Judge, Court of Small Causes,
Chennai .
2.XVI Judge, Small Causes Court
Chennai.
C.R.P.No.716 of 2013
24.08.2023
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