TaxTMI 
TaxTMI 
1990 (10) TMI 362
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.... Hence these appeals. The material facts are undisputed at this stage. The premises comprises of two shops and a house adjoining the shops and belonged earlier to one T.A. Jotindranath Mudaliar. The premises were let out by the original lessor to M/s. Bhoolchand Chandiram (Appellant in Civil Appeal No. 470 1 of 1985) on 4.10.1943 on terms contained in the letter dated 4.10. 1943 from the original lessor to M/s. Bhoolchand Chandiram which reads as under: "T.A. Jotindranath 933, Laxmipur Mudaliar. Mysore, 4th October 43 To Messrs. Boolchand Chandiram, Silk Merchant, C/o Messrs. Bhagwandas Shyam sunder & Co., 112, Commercial Street, Bangalore Cantt. Dear Sirs, With reference to your letter dated 30th Sept. 43 and your personal conversation about renting out my shops in 254 the Commercial Street, Bangalore Cantonment, it is agreed and confirmed that you are prepared to take the two shops at monthly rent of Rs.430 (Rs. Four hundred and thirty only) with two years agreement and three month's advance and execute the necessary rental Deed, with the option of subletting one of the shops. As for the House adjoining the shops at monthly rent of Rs.50 (Rs. Fifty only) with one ....
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.... rise to the other ground of sub-letting also for eviction. The respondent No. 1 gave a notice on 31.7.1975 terminating the appellanttenant's tenancy. Thereafter on 5.9.1975 a petition was filed by respondent No. 1 for eviction of the appellant on the grounds of sub-letting and bona fide need of the landlord under clauses (f) & (h) of the proviso to sub-section 1 of Section 21 of the Karnataka Rent Control Act, 1961. As earlier stated, the Trial Court dismissed the application, but the High Court has set aside that order and passed a decree for eviction on both the grounds. The ground of sub-letting is to be decided on the above undisputed facts on the basis of legality of the act of sub-letting on 1.4.1948 in these circumstances. The ground of bona fide need of the landlord is to be decided on the basis of the evidence led which is entirely oral from both the sides with reference to the infirmity, if any, in the High Court's finding permitting interference therewith in these appeals. Dr. Y.S. Chitale, learned counsel appearing for the appellant-tenant assailed the High Court's findings on both these questions. Shri S. Ghosh, learned counsel appearing for the sub-tenan....
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....as, therefore, to be seen whether the High Court in the present case while reversing the Trial Court's finding on the question of landlord's reasonable and bone fide requirement of the suit premises exceeded its jurisdiction. Admittedly, the only evidence led by the landlord for this purpose is oral comprising of the testimony of PW. I Dinesh, the Power of Attorney holder of the landlord and son of one of the three ladies who were partners of that firm. The evidence in rebuttal is also oral comprising essentially of denial of the plaintiffs requirement. The credibility of the oral evidence adduced by the parties has to be assessed in the background of certain undisputed facts and circumstances. It is undisputed that the respondent No. firm comprising of three partners, all women, belonging to a family of businessmen having textile business also was constituted in 1958 and the firm was registered in 1961; the power of attorney was given to PW 1 Dinesh, son of one of the partners, on 4.9.1970; the suit premises was purchased by the respondent No. 1 firm in 1974; respondent No. 1 firm has its business in one room on the third floor in a rented premises in Bangalore and it doe....
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....hree ladies constituting the respondent No. 1 firm come from a family having textile business and for the purpose of the suit premises, they being distinct from other members of the family with their separate business in a rented accommodation in the same city, the Trial Court's finding was vitiated by another infirmity when it failed to examine the need set up by respondent No. 1 firm in the correct perspective. The High Court was, therefore, justified in re-examining the correctness of the finding on this question correcting both these errors which had vitiated the Trial Court's finding. These infirmities in the Trial Court's finding clearly show that the weight of the Trial Court's finding of fact in the present case was considerably reduced and the High Court in a revision under Section 50 of the Act was empowered to examine the correctness of this finding after eliminating both the infirmities. It is obvious that the partners of the respondent No. 1 firm belonging to a family already having large textile business would not purchase the suit premises in a prestigious commercial locality at Bangalore merely for earning the monthly rent of Rs.325 after investing ....
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....lord? The written consent of the landlord on which reliance is placed by the tenant as well as the sub-tenant, the appellants in these appeals, is that contained in the above quoted letter dated 4.10.1943 of the original lessor. Unless the written consent of the landlord contained in the above letter dated 4.10.1943 can be held to be subsisting on 1.4.1948 when the sub-letting was made in favour of M/s. Super Dry Cleaners there , would, admittedly, be no written consent of the landlord to this subletting. There is no controversy in this respect. The first point for consideration, therefore, is whether the written consent of the landlord contained in the above quoted letter dated 4.10.1943 can be treated as subsisting and available on 1.4. 1948 when the subletting in question was, in fact, made. There is no case set up by the tenant and sub-tenant of any implied consent of the original lessor or waiver of the ground of sub-letting and, therefore, that question does not arise for consideration. The written consent of the landlord for sub-letting on 1.4.1948 according to learned counsel for the appellants is to be found in the letter dated 4.10.1943 of the original lessor. The conse....
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.... two years in respect of the two shops. This is the factual position emerging from the aforesaid letter dated 4.10.1943 which alone is the basis of appellant's assertion that sub-letting w.e.f. 1.4.1948 was with the written consent of the original lessor. Admittedly, creation of the sub-tenancy w.e.f. 1.4.1948 in respect of one of these shops was long after the expiry of the period of contractual tenancy of two years specifically mentioned in that letter. The question, therefore, is: whether the landlord's consent given in the said letter dated 4.10.1943 could be treated as subsisting for creation of a valid sub-tenancy w.e.f. 1.4. 1948 after the expiry of the period of contractual tenancy? The argument of Dr. Chitale, learned counsel for the appellanttenant, which has also been adopted by Shri Ghosh, learned counsel for the appellant sub-tenant is that on expiry of the contractual tenancy, the tenant became a statutory tenant by virtue of the restriction on his eviction except on one of the grounds for eviction provided in the statute and, therefore, all the terms and conditions of the contractual tenancy became the terms and conditions of the statutory tenancy. On this ba....
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....d tenant who was in occupation as statutory tenant. Pointing out that the concept of statutory tenancy under the English Rent Acts and under Indian Statutes like the one with which we are concerned rests on different foundations, it was held that the statutory tenant had a heritable interest in the premises which was not merely a personal interest but an interest in the estate like that of a contractual tenant. On this conclusion, the right of legal representatives of the statutory tenant to protect the possession and prosecute the appeal against eviction order was upheld. The main question for decision in Damadilal's case (supra) was the heritable nature of the statutory tenancy and it was in this context that the terms and conditions of a statutory tenancy were held to be the same as those of the contractual tenancy preceding it. No question arose in Damadilal's case (supra) of the right of a statutory tenant to create a subtenancy after replacement of the contractual tenancy with the statutory 'tenancy. The observations made and the decision rendered in Damadilal's case (supra) cannot, therefore, be construed as holding that a statutory tenant has a right to crea....
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.... period of contractual tenancy on the basis of the written consent for subletting given by the landlord, the subletting did not become unlawful merely because the contractual tenancy of the tenant came to an end and the protection against eviction to the tenant as a statutory tenant also enured to the benefit of the lawful sub-tenant recognised by the statute. It was held as under: "Subletting lawfully done with the written consent of the landlord does not become unlawful merely on the ground that the contractual tenancy has come to an end. Subletting to constitute a valid ground for eviction must be without the consent in writing of the landlord at the time when the tenant sub-lets any portion to the sub-tenant. A subletting by the tenant with the consent in writing of the landlord does not become unlawful on the expiry of the contractual tenancy of the tenant, unless there is any fresh sub-letting by the tenant without the written consent of the landlord Mere continuance in possession of a sub-tenant lawfully inducted does not amount to any fresh or further sub-letting. We are, therefore, satisfied that in the instant ....
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....ts runs counter to the clear decision in Mahabir Prasad's case (supra) which, in our opinion, is in no way contrary to the decisions starting with Damadilal's case (supra), the observations wherein are in the context of heritability of the statutory tenancy. In fact. it is rightly not even contended by Dr. Chitale that the decision in Mahabir Prasad's case (supra) runs counter to Damadilall's case Supra and other decisions following them. This is sufficient to indicate that the appellants' contention is untenable. There is some controversy between the parties about the legislative history of the Rent Acts in the Bangalore Civil Station wherein the suit premises is located, but an indepth consideration of that controversy is not necessary. The only question is: whether on 1.4.1948 when the subletting was made in favour of M/s. Super Dry Cleaners, the contractual tenancy giving written consent for sub-letting having expired was the written consent of the landlord for sub-letting necessary under the statute then in force? It is sufficient to state that the Bangalore House Rent and Accommodation Control Act, 1946 was brought into force w.e.f. 1.10.1946 for a period....