LEKSHMANA SHENOI Vs. SUBRAMONIAM PILLAI
HIGH COURT OF KERALA
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(1.) This is a plaintiffs appeal in a suit for arrears of rent. The plaintiffs house had been rented to the 1st defendant from 1.1.1123 at a monthly rent of Rs. 110. The first defendant had committed default in payment of rent from 1.3.1123 and had further let in defendants 2 to 4 as lessees under him. On both these grounds the plaintiff filed petition for eviction before the Rent Controller and obtained order in his favour on 12.11.1123 and subsequently recovered possession on 19.1.1124. The plaintiff claimed in this suit that from the moment the cause of action arose in his favour for recovery of property under and by virtue of the provisions of the Rent Control Order the defendants 1 to 4 had all of them become trespassers in wrongful occupation of the property and on this basis they were jointly and severally liable for damages for use and occupation for all the interval between Thulam 1123 and Chingom 1124. The courts below held that the tenancy had not been determined by proper notice to quit under the Transfer of Property Act so far as the 1st defendant tenant was concerned and defendants 2 to 4 being only sublessees could not accordingly be made liable on any basis either as for rent or as for damages for the use and occupation and gave decree against the 1st defendant alone.
(2.) Learned Counsel for the appellant urges that the tenancy must be deemed to have been determined when the right to recover possession under the Rent Control Order first arose in his favour, that the principles of the Transfer of Property Act in regard to termination of tenancy by notice to quit had no place in the scheme of things prevailing under the Rent Control Order and that once right to possession had accrued and notice was given thereof through the Rent Controller, the opposite partys possession became wrongful and if so all the persons who were in occupation were individually liable for damages consequent upon the trespass. Alternatively if notice of termintion of the tenancy was necessary the plea as to want of it was available only to the 1st defendant but he remained ex parte and must therefore be held to have waived such plea. It seems to me that these arguments have a good deal of force. The tenancy agreement in the case was in respect of a house building where the rent had been fixed at particular rate per mensem. It may be taken therefore that there was a monthly tenancy which required for its termination in the ordinary course, a 15 days notice and that this requisite procedure had not been adopted by the plaintiff. But the Rent Control Order was a special piece of emergency legislation regulating the jural relationship of landlord and tenant and replacing to the extent to which it went the ordinary law which governed the subject, previous to its operation, as provided in the Transfer of Property Act; so much so the termination of the tenancy which arose only after the issue of notice to quit under the Transfer of Property Act had been thoroughly modified by the Rent Control Order. See 1949 Madras 780 and 1951 Patna 528. It was enough under the Rent Control Order that certain incidents apart from the issue of notice to quit took place to enable a landlord for instance to claim that the lease has terminated and he can evict his tenant and get at possession. What was lawful possession under and by virtue of the lease could therefore be deemed to have ceased to be such once the machinery of the Rent Control Order could be effectively put in operation to dispossess the quondam lessee. It seems to me to be wrong to talk of a sublease as continuing to subsist with all its legal incidents after it is deprived of the power to sustain possession thereunder as against the non consenting landlord. I therefore hold that defendants 2 to 4 should be deemed to have become trespassers in occupation of the property from the moment the plaintiff became entitled to evict them by virtue of the Rent Control Order.
(3.) Learned Counsel for respondents strenuously contended that the suit as framed for rent as against the 1st defendant and for damages for use and occupation as against defendants 2 to 4 was a misjoinder of causes of action and the plaintiff should not be allowed to argue, as if defendants 1 to 4 were all trespassers and were therefore jointly and severally liable to the plaintiff. It must be remembered, however, that the plaint mentioned all the details of the matter, viz., that the 1st defendant had acted wrongfully in getting defendants 2 to 4 into the property and on that ground the plaintiff was entitled to recover compensation as against all. The use of the word rent cannot after all be said to be a fatal defect in the circumstances.
In the result, I reverse the decree of the courts below and decree the suit as prayed for with costs throughout against defendants 2 to 4 as well.;
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