Case ID: 4251

Judgment:
Civil Appeal No. 140 of 1979. Appeal by Special Leave from the Judgment and Order dated 8 12 1978 of the Kerala High Court in C.R.P. No. 3450/78. P. Govindan Nair	 Sardar Bahadur Saharya	 Vishnu Bahadur Saharya and Mrs. Baby Krishnan for the Appellant T. section Krishnamurthy Iyer	 A. section Nambiyar	 and P. Parmeswaran for the Respondent. The Judgment of the Court was delivered by CHINNAPPA REDDY	 J. The respondent landlord filed a petition for eviction of the appellant tenant from the premises in dispute under section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act	 No. II of 1965	 on the ground that the appellant had sub let the premises without the consent of the landlord. The petition had a chequered career but finally the Rent Controller ordered eviction by his order dated July 31	 1974. The order of the Rent Controller was confirmed	 successively by the Subordinate Judge	 the District Judge and	 the High Court. The tenant has now preferred this appeal by special leave of this Court under Art	 136 of the Constitution. Shri Govindan Nair learned counsel for the appellant submitted that under section 108(j) of the 	 it was a term of every lease that the lessee might sub lease the whole or any part of his interest in the property and	 therefore	 unless the lease expressly prohibited the lessee from sub letting the whole or part of the premises	 the landlord could not have recourse to section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act. In order to appreciate the submission of Shri Govindan Nair	 we may set out the relevant statutory provisions. section 108(j) of the 	 is as follows: "108. In the absence of a contract or local usage to the contrary	 the lessor and the lessee of the immovable property	 as against one another	 respectively	 possess the rights and are 141 subject to the liabilities mentioned in the rules next following	 or such of them as are applicable to the property leased : (A) Rights and liabilities of the lessor (a) X X X X X X X X X (b) X X X X X X X X X (c) X X X X X X X X X (B) Rights and liabilities of the lessee (d) X X X X X X X X X (e) X X X X X X X X X (f) X X X X X X X X X (g) X X X X X X X X X (h) X X X X X X X X X (i) X X X X X X X X X (j) the lessee may transfer absolutely or by way of mortgage or sub lease the whole or any part of his interest in the property	 and any transferee of such interest or part may again transfer it. The lessee shall not	 by reason only of such transfer	 cease to be subject to any of the liabilities attaching to the lease; X X X X X X X X X section 11 of the Kerala Buildings (Lease and Rent Control) Act	 No. II of 1965	 to the extent that it is relevant is as follows: "11(1) Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted whether in execution of a decree or otherwise	 except in accordance with the provisions of this Act: Provided that . . . Provided further that . . (2) X X X X X X X X X (3) X X X X X X X X X (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". The submission of Shri Govindan Nair was that if the lease did not expressly prohibit sub letting	 the provision in section 108(j) of the which enabled a lessee to sub lease the whole or any part of his interest in the property had necessarily to 142 be read into every lease as one of its terms	 and so read	 it followed that the lease conferred on the tenant the right to sub let "the entire building or any portion thereof" so as to disentitle the landlord from seeking eviction of the tenant under section 11(4)(i) of the Kerala Act. We are unable to agree with this submission. Read plainly and without gloss	 section 11(4)(i)	 simply and clearly	 means that a tenant may be evicted on the ground of sub letting unless such sub letting is permitted by a term of the lease itself or by subsequent consent of the landlord. What is necessary is an application of the mind and the resulting consensus between the landlord and the tenant. If the clause "if the lease does not confer on him any right to do so" was not there in section 11(4)(i) the position would be unarguable that section 108(j) would offer no protection. That much was also conceded by Shri Govindan Nair. In our opinion	 the addition of the clause did not improve matters for the tenant. It only clarified matters to this extent that the right to sublet could be conferred on the tenant either at the time of the lease or subsequently	 but it had to be conferred: it could not be claimed unilaterally by the tenant. To interpret section 11(4)(i) in the manner suggested by Shri Govindan Nair would be to rewrite the provision as follows: "if the tenant. . . . . 	 without the consent of the landlord	 transfers his right under the lease or sublets the entire building or any portion thereof	 though prohibited by lease from doing so". That	 we are not called upon to do. A little thought over the reason for section 11 (4)(i) will also throw some light. Quite obviously	 the legislature thought that the tenant whose tenancy was well secured and protected by the rights conferred by the Buildings (Lease and Rent Control) Act should alone be entitled to such security and protection and that the tenant should not be allowed to profit by the protection given to him by subletting the premises and extending the protection to others besides himself	 unless the landlord by his act agreed to such a course. Where the landlord had himself agreed that the tenant could sublet	 the question would not arise. Therefore	 section 11 (4)(i) provides that subletting shall be a ground for eviction but not if it was by agreement of the landlord. In V. Dhanapal Chettiar vs Yesodai Ammal(1) a Bench of seven judges of this Court had to consider the question whether notice under section 106 of the determining the lease was necessary before a landlord could move Rent Controller or other appropriate authority for the eviction of the tenant under the various State Rent Acts. The Court held that it was not necessary and Untwalia	 J.	 speaking for the Court	 said: 143 "Section 108 deals with the rights and liabilities of lessors and lessees. Many State Rent Acts have brought about considerable changes in the rights and liabilities of a lessor and a lessee	 largely in favour of the latter	 although not wholly. The topic of Transfer of Property other than agricultural land is covered by Entry 6 of List III in the Seventh Schedule to the Constitution. The subject being in the concurrent list	 many State Rent Acts have by necessary implication and many of them by starting certain provisions with a non obstante clause have done away with the law engrafted in section 108 of the except in regard to any matter which is not provided for in the State Act either expressly or by necessary implication". Later	 he said: "But when under the various State Rent Acts	 either in one language or the other	 it has been provided that a tenant can be evicted on the grounds mentioned in certain sections of the said Acts	 then how does the question of determination of a tenancy by notice arise? If the State Rent Act requires the giving of a particular type of notice in order to get a particular kind of relief	 such a notice will have to be given. Or	 it may be that a landlord will be well advised by way of abundant precaution and in order to lend additional support to his case	 to give a notice to his tenant intimating that he intended to file a suit against him for his eviction on the ground mentioned in the notice. But that is not to say that such a notice is compulsory or obligatory or that it must fulfill all the technical requirements of section 106 of the ". It is clear from what has been said that not all the rights conferred on landlord and tenant by section 108 and other provisions of the have been left in tact by the various State Rent Acts and that if a State Rent Act makes provision for eviction on certain specified grounds	 eviction cannot be resisted on the basis of rights conferred by the . Section 108(j) of the stands displaced by section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act and is no defence to an action for eviction based on section 11(4)(i). We are satisfied that the appeal is without merit and is accordingly dismissed with costs. P.B.R. Appeal dismissed.

Summary:
On the ground that the tenant had sublet the premises without his consent the landlord sought the tenant 's eviction from the premises under section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act	 1965. The Rent Controller ordered eviction and this order was affirmed by the Subordinate Judge	 District Judge and the High Court. Before this Court it was contended on behalf of the tenant that under section 108(j) of the 	 it was a term of every lease that the lessee might sublease the whole or any part of his interest in the property and	 therefore	 unless the lease expressly prohibited the lessee from sub letting the whole or part of the premises	 the landlord could not have recourse to section 11(4)(i) of the Act. Dismissing the appeal	 ^ HELD: What section 11(4)(i) of the Act provides is that sub letting shall be a ground for eviction but not if it was by agreement of the landlord. [142G] 1(a) What section 11(4)(i) means is that a tenant may be evicted on the ground of sub letting unless such sub letting is permitted by a term of the lease itself or by subsequent consent of the landlord. If the clause "if the lease does not confer on him any right to do so" was not there the position would be unarguable that section 108(j) of the would offer no protection. But the addition of the clause only clarified that the right to sublet could be conferred on the tenant either at the time of the lease or subsequently but it had to be conferred; it could not be claimed unilaterally by the tenant. [142B D] (b) Quite obviously the legislature thought that the tenant	 whose tenancy was well secured and protected by the rights conferred by the Act should alone be entitled to such security and protection and that the tenant should not be allowed to profit by the protection given to him by subletting the premises and extending the protection to others beside himself unless the landlord by his act agreed to such a course. [142F] 2. It is well settled law that not all the rights conferred on the landlord and tenant by section 108 and other provisions of the have been left intact by the various State Rent Acts and that if a State Rent 140 Act makes provision for eviction on certain specified grounds	 eviction cannot be resisted on the basis of rights conferred by the . Section 108(j) stands displaced by section 11(4)(i) of the Act and is no defence to an action for eviction based on this section. [143G] V. Dhanapal Chettiar vs Yesodai Ammal. ; @ 1747= ; referred to.