VIPINACHANDRAN Vs. XAVIER

JUDGEMENT

(1.) Whether the non receipt of a registered notice sent by the landlord intimating the tenant of the sublease under the proviso to S.11(4)(i) is fatal to the application filed by a landlord under S.11(4)(i) of the Act is the question that has come up for consideration in this case.

(2.) The building bearing door No. 47/1476 belonging to the landlord was let out to the first respondent before the Rent Control Court on 1-1-1980 on a monthly rent of Rs. 100/- on the strength of an oral lease. Contrary to the agreement first respondent sublet the building to the second respondent. Landlord came to know of the subletting. Consequently landlord sent a registered lawyer notice A1 in the address of the tenanted premises. Notice returned with endorsement "addressee out of India." Copy of the notice was also sent to second respondent, sublessee. The same was received by the sublessee. First respondent failed to terminate the sublease, consequently landlord filed the rent control petition on 15-11-1988. Contention was raised by the respondents that since no proper notice was served on the first respondent the rent control petition filed under S.11(4)(i) is not maintainable. Sri. Vidyasagar, counsel appearing for the revision petitioner submitted that actual service of a registered notice on the first respondent is a pre condition for invoking S.11(4)(i). Counsel submitted landlord is legally obliged to inform the lessee of the contravention of the terms of the lease and the statute gives 30 days to the tenant to terminate the sublease. Counsel submitted failure to intimate the contravention of the terms of the lease is fatal to the application preferred under S.11(4)(i). Sri. Sreelal Warier counsel appearing for the landlord submitted notice was correctly addressed and sent by registered post acknowledgment due and the failure to receive the notice by itself would indicate that the tenant is not in occupation of tenanted premises but the subtenant.

(3.) It is a rule of law that if there is a lessee and lessee has created sublease or any other legal interest, then if the lease is forfeited, the lessee or the person who claims under the lessee, loses his estate as well as the lessee himself. The normal rule is that lessee is not expected to sublease the premises unless he is authorised or there is acquiescence on the part of the lessor. Burden is always on the lessee to show that the lessor has consented to the sublease or acquiesced. The burden will be heavy if the lease is an oral lease. So far as this case is concerned no evidence has been adduced by the first respondent to show that the landlord had either consented to the sublease or there is an agreement permitting the lessee to sublease the premises. We shall now examine whether non receipt of the notice by the tenant by itself would be a sufficient ground to reject the petition under S.11(4)(i). For easy reference we may extract the relevant portion of S.11(4)(i).