HIGH COURT OF KERALA
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(1.) LANDLADY is the revision petitioner. Eviction was sought for under Sections 11(2)(b), 11(4)(i) and 11(4)(ii) of Act 2 of 1965. Rent Control Court allowed eviction under Sections 11(2)(b) and 11(4)(i) and dismissed the claim under Section 11(4)(ii). First respondent-tenant took up the matter in appeal before the Appellate Authority as R.C.A. No. 19 of 1995. While the appeal was pending, first respondent died. Consequently his legal representatives, wife and children got themselves impleaded. The Appellate Authority allowed the appeal and set aside the finding under Section 11(4)(i). Aggrieved by the same this revision petition has been preferred by the landlady.
(2.) PETITION schedule building was rented out on 1-1-1993 by Ext. A2 rent chit on a monthly rent of Rs. 400/-. Petitioner stated that first respondent had defaulted in payment and that he had sub-leased the premises to respondents 2 and 3 and caused damages by reducing its value and utility of the premises. Petitioner had sent registered lawyer notice Ext. A-3 dated 25-8-1993 to the first respondent intimating about the sub-lease and directing him to vacate the sub-lessee within thirty days from the date of receipt of the notice. Petitioner has stated in the rent control petition that first respondent has sub-let a portion of the tenanted premises to the second respondent for conducting a telephone booth without her consent and knowledge. Further first respondent has also transferred the hotel business in the premises to the third respondent by way of sub-lease and the third respondent is running a hotel by name "Thripthy Hotel" in the said premises.
First respondent-original tenant resisted the petition. Second respondent filed counter affidavit resisting the petition. Later his counsel reported no instruction and he was set ex parte. Third respondent was also set ex parte. In the counter statement filed by the first respondent he denied the alleged sub-lease. He maintained the stand that the entire premises is in his occupation. Telephone booth is run in the premises for his own benefit. It was pointed out that no licence for running the telephone booth was taken out in the name of the second respondent. The same was in fact conducted by the first respondent only with his assistance. Further it, is also stated that second respondent is being paid fixed amount as remuneration. Third respondent is not doing any business in the premises. In order to establish her case, father of the petitioner was examined as P.W.1. P.W.2 is the Commissioner appointed in O.S. No. 141 of 1993. On the side of the petitioner Exts. A1 to A5 documents were produced. First respondent got himself examined as R.W.1. On the side of the respondents Exts. B1 to B1(z) were produced. Ext. X1 is the file of the Telecom District Office, Thrissur.
(3.) THE Rent Control Court entered a clear finding on the basis of the oral and documentary evidence that the petitioner-landlady has established that the first respondent has sublet the premises to one Francis, the second respondent, and he is running telephone booth in a portion of the tenanted premises. Rent Control Court also entered a specific finding that the first respondent has sub-leased the premises to hotel business to the third respondent and he is conducting hotel by name "Thripthi Hotel" and later it was found that the hotel is being conducted by one Raghavan under the name and style "Hotel Ambadi". The Rent Control Court found no reason to allow eviction under Section 11(4)(ii) and therefore eviction under Section 11(4)(ii) was disallowed. Appellate Authority reversed the finding of the Rent Control Court, which in our view, by a wayward reasoning without properly understanding the meaning and scope of Section 11(4)(i) of the Act. Appellate Authority has first examined as to whether landlady had complied with the first proviso to Section 11(4)(i), i.e. issuance of notice. We may extract the said proviso for easy reference :
"Provided that an application under the clause shall not be made for the first time in respect of one and the same tenancy unless the landlord has sent a registered notice to the tenant intimating the contravention of the said condition of the lease and the tenant has failed to terminate the transfer or the sub-lease as the case may be, within thirty days of the receipt of the notice or the refusal thereof."
Appellate Authority took the view that the landlady has complied with the pre-condition of issuance of notice under the proviso to Section 11(4)(i) as far as the second respondent is concerned and not the third respondent. Appellate Authority held as follows :
"It is crystal clear that in Ext. A3 the contravention alleged is sub- lease/transfer of possession in favour of the second respondent. There is no complaint or grievance that there is a contravention by transferring/sub- leasing the building in favour of the third respondent. Thus, in respect of the alleged sub-lease/transfer of possession in favour of the third respondent, the proviso to Section 11(4) has not complied with."
Appellate Authority took the view that unless the alleged contravention is specified in the notice, the tenant would be deprived of an opportunity to correct the indiscretion and reverse the error or wrong committed by him.;
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