REPORTABLE

IN THE SUPREME COURT OF INDIA CIVILAPPELLATE JURISDICTION

CIVIL APPEAL NOs.2442-2443 OF 2011

K. LUBNA & ORS. … Appellants

VERSUS

BEEVI & ORS. …Respondents

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. One Pathummakutty, the owner, let out three shop room premises,

defined as Room Nos. 3/471, 3/472, 3/476, located in 1-29 in Survey 14

and  Re-survey  15/6,  at  the  eastern  side  of  Areekadu  NirathuVazhi,

Nallalam  Amsom  Desom,  Kozhikode  Taluk  to  one  Beerankoya  vide

document dated 1.1.1967 for a monthly rent of Rs.75.  The ownership

rights in the property were transferred in favour of the appellants in 1986

1

by  a  registered  document.   This  transfer/assignment  was  intimated  to

original respondent No.1 (now represented through his legal heirs) as per

a  registered  letter  in  May,  1986.   The  allegation  is  that  the  original

respondent sent rent through money orders only up to November, 1987,

and  stopped  payment  of  rent  thereafter.   It  is  also  alleged  that  the

appellants required the premises  bona fide; two of the shops had been

sublet by the original respondent without the consent of the appellants

and  the  value  of  the  suit  shops  had  been  reduced  materially  and

permanently by the respondents.  The appellants, thus, sent a legal notice

dated 15.12.1987 demanding surrender of possession of suit shop rooms

and arrears of rent, and ultimately filed an eviction petition before the

Rent Control Court, Kozhikode for eviction under Sections 11(2), 11(3)

and  11(4)(i)  &  11(4)(ii)  of  the  Kerala  Buildings  (Lease  and  Rent

Control), Act, 1965 (hereinafter referred to as the ‘said Act’).

2. The trial court  vide judgment dated 31.10.1994 found against the

appellants on all grounds except non-payment of rent while granting a

decree of eviction for all the three shops.  In terms of Section 11(2)(b) of

the said Act read with Section 11(2)(c) of the said Act, in case such an

eviction order is passed, one month’s time or any further time as deemed

2

proper by the Rent Control Court is granted to the tenant to deposit the

arrears  of  rent  with  interest  and  the  cost  of  proceeding,  and  in  that

eventuality the eviction order is to stand vacated.  It does appear that the

amount  was  thereafter  deposited  by  the  respondents.   The  appellants

preferred an appeal before the appellate authority.  The three rooms were

3/471, 3/472 and 3/476.  In respect of Room No.3/471 though bona fide

need of the appellants was not found, in Room No.3/472 the  bona fide

need of  the appellant  was stated to  be  proved but  no sub-letting was

stated to have been proved, and in respect of Room No.3/476 the sub-

letting was proved.  Thus, eviction was granted in respect of rooms 3/472

and 3/476 vide order dated 9.7.1998.

3. The  aforesaid  order  resulted  in  cross-revision  petitions  by  both

sides before the High Court of Kerala.  In terms of the impugned order

dated 30.10.2007 qua Room No.3/471, no bona fide need has been found

and the position is the same in respect of Room No.3/472.  Further, while

sub-letting was not proved qua Room No. 3/472, was stated to have been

proved  qua Room  No.3/476.   The  result  of  the  aforesaid  is  that  the

endeavour  of  eviction  from Room Nos.3/471  and  3/472  failed,  while

3

eviction  order  qua  Room No.3/476  on  the  ground  of  sub-letting  was

sustained.

4. The appellants, aggrieved by this order, preferred a Special Leave

Petition, in which leave was granted on 4.3.2011.  The respondents did

not prefer any appeal, and even after leave was granted, did not file any

cross-appeal/cross-objections.   In  the  proceedings  of  29.8.2019,  this

Court recorded the real contention of the appellants as advanced by the

counsel, that there was one tenancy though there were different violations

in different portions of the tenancy.  The notice dated 15.12.1987 was

stated to be a composite notice and one eviction petition was filed quathe

whole premises.  That being the position, it was sought to be contended

before us, by inviting our attention to Section 11(4)(i) of the said Act, that

even if the sub-tenancy is created in part of the premises, the entitlement

of  eviction  is  in  respect  of  the  whole  of  the  premises.   The  relevant

provision reads as under:

“11. Eviction of tenants.—

xxxx xxxx xxxx xxxx xxxx

4

(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:

Provided that an application under this 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  sublease  as  the  case  may be,  within thirty  days  of  the  receipt  of  the  notice  or  the  refusal thereof.”

5. It  would  be  useful  at  this  stage  itself  to  also  reproduce  the

definition of a ‘building’ as defined under Section 2(i) of the said Act,

which reads as under:

“2.Definitions.--In  this  Act,  unless  the  context  otherwise

requires,-

(1) "building" means any building or hut or part of a building or hut  let  or  to  be  let  separately  for  residential  or  nonresidential purpose and includes- (a) ….. (b) ….. (c) …..”

6. In order to appreciate the controversy, we deemed it appropriate to

5

peruse the notice dated 15.12.1987, which was not  on record.   In the

subsequent proceedings, it was found that there was some difficulty in

obtaining the same and, thus, the record of the trial court was called for,

to peruse the same.  On a perusal of the record, what emerges is that there

was actually one tenancy and one single notice seeking eviction of the

tenants  on  different  grounds,  though  the  allegation  against  the  three

portions are different in character.  A perusal of the eviction petition also

shows  the  same,  i.e.,  there  is  a  single  eviction  petition  for  the  three

shops/rooms,  though  the  alleged  violations  are  different  in  respect  of

different portions.

7. We may notice that the plea sought to be advanced before us, that

sub-letting  one  room  would  entail  eviction  from  the  entire  tenancy

premises, apparently was never urged before the trial court, the appellate

court or the High Court,  and forms a part of the pleadings before the

Supreme Court, to the extent of being included in the rejoinder to the

SLP.   Thereafter  by  way  of  an  interlocutory  application, additional

grounds were urged where this  question was sought to be raised,  and

leave was granted by this Court post that stage.  The net effect, in our

view of all of these is that this plea has to be examined; rather this is the

6

only plea to be examined by us in view of the finding of fact recorded by

the three courts.

8. Learned counsel for the respondents endeavoured to dissuade us

from examining this plea in view of it not having been raised at an earlier

stage and thus, no factual basis being laid for the same.  However, on

perusal of the eviction petition, the notice and the reply, what is found is

that the aspect of single tenancy was never disputed.  Nor is it disputed

that there were different grounds made out for different portions, i.e., that

the  single  tenancy  was  of  three  rooms,  but  what  the  respondents,  as

tenants, were alleged to have done, to constitute violation of the terms of

the lease was different for the three portions.  Such allegations, however,

did not find favour ultimately, except to the extent of one of the portions,

i.e., Room No.3/476, where the finding reached was of subletting, by the

appellate authority, reversing the finding of the trial court on that aspect,

and  the  High  Court  thereafter  affirming  the  same.   Thus,  there  is  a

concurrent finding by the final court of fact, as well as in the revision

petition.

7

9. On the legal principle, it is trite to say that a pure question of law

can be examined at any stage, including before this Court.  If the factual

foundation for a case has been laid and the legal consequences of the

same  have  not  been  examined,  the  examination  of  such  legal

consequences would be a pure question of law1.

10. No doubt the legal foundation to raise a case by including it in the

grounds of appeal is mandated.  Such mandate was fulfilled by moving a

separate application for permission to urge additional grounds, a course

of  action,  which  has  already  been  examined  by,  and  received  the

imprimatur of, this Court in Chittoori Subbanna v. Kudappa Subbanna2.

11. We may also usefully refer  to what has been observed by Lord

Watson  in  Connecticut  Fire  Insurance  Co.  v.  Kavanagh3 in  the

following words:

“….When a question of law is raised for the first time in a court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea. The expediency of adopting

1Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari 1950 SCR 852 2AIR 1965 SC 1325 31892 A.C. 473

8

that course may be doubted when the plea cannot be disposed of without deciding  nice  questions  of  fact  in  considering  which  the  court  of ultimate review is placed in a much less advantageous position than the courts below.”

12. In our view, the aforesaid succinctly sets forth the parameters of

scrutiny, where the question of law is sought to be raised at the final court

stage.  There are no “nice questions of fact” required to be decided in the

present case which would dissuade us from examining this plea at this

stage.  We have set forth the undisputed facts aforesaid.  Thus, the only

question  is  whether  this  is  a  question  of  law  which  deserves  to  be

examined, and has ramifications in the present case.

13. We may now turn to the judicial pronouncements of this Court in

M. Meeramytheen & Ors. v.  K. Parameswaran Pillai & Ors.4,  which

deals with the very said Act with which we are concerned.  In the facts of

that case, one single tenancy was created in relation to two shop rooms,

while sub-tenancy was created in respect of one of the two shop rooms

by the tenant.  Much later, a partition was effected by virtue of which the

two shops were allotted to the share of different co-sharers who joined

together  in  the  suit  proceedings  seeking  eviction  of  tenants  as  sub-

4(2010) 15 SCC 359

9

lessees.   It  was  held  that  it  could  not  be  said  that  on  account  of  the

partition, the original tenancy was divided and therefore, eviction could

be ordered only in respect of one of the rooms that was actually sub-let,

more so when the cause of action had arisen prior to the partition.  The

appellate court and the High Court, having granted a decree of eviction

only with respect to one shop, was stated to be a legal error committed

and, thus, eviction was granted in respect of both the shops on the ground

that one of the shops was sub-leased, in view of the provision extracted

hereinabove.

14. The aforesaid judgment, in our view, covers the legal principle on

all fours.  A bare reading of sub-para (i) of sub-section (4) of Section 11

of the said Act leaves no manner of doubt that the cause arises upon the

tenant transferring his rights under a lease and sub-lets the entire building

“or any portion thereof”, if the lease does not confer on him any right to

do  so.   The  proviso  requires  that  the  landlord  should  have  sent  a

registered notice to the tenant intimating the contravention of the said

condition of the lease and upon the tenant failing to terminate the transfer

or the sub-lease, as the case may be, within thirty (30) days of the receipt

10

of the notice, an application for eviction could be made by the landlord.

Thus,  sub-letting  of  any  part  of  the  tenanted  premises  gives  right  to

eviction from the whole premises.  That is how the statute reads and that

is also, in our opinion, a reasonable interpretation of the same, as, if one

tenancy is created it would not be appropriate to pass eviction order only

in respect of a part thereof, and not the whole.    The provision reading

clearly, and in view of the aforesaid judicial pronouncements, there is no

doubt about this proposition.  This is not a case of bona fide requirement.

The findings of fact in this case are not required to be closely scrutinised

as the essential  facts,  which have been analysed by the courts  below,

clearly show the existence of a single tenancy.  Issuance of a single notice

and the filing of a single eviction petition, albeit raising different grounds

for different portions of the premises, is an undisputed fact.  Thus, the

appellant is not expected to allege sub-letting of the whole premises if the

sub-letting is only in part of the premises.  No doubt the appellants have

not specifically claimed that by sub-letting a portion, the whole premises

is  liable  to  be  vacated,  but  then  that  is  the  legal  consequence  as  is

emerging from the legal position.

11

15. Learned counsel for the respondent did seek to contend that had he

known all these consequences, he would not have accepted the judgment

of the High Court, as he was maintaining the occupation of two of the

rooms and had accepted the vacation of one room.  But then we squarely

put to him that the additional grounds were pleaded and thereafter leave

was granted.  Thus, nothing prevented the respondents from filing cross-

objections/cross-appeals at that stage of time, which they chose not to do

despite knowing the nature of plea which has been raised as an additional

ground.

16. We are, thus, of the view that the appellants are entitled to a decree

of eviction for the entire premises, mentioned as tenanted premises, on

the ground of the respondents having sub-let a part of the premises, and a

decree is accordingly passed.

17. In the given facts of  the case,  we grant  the respondents  six (6)

months’ time to vacate the premises.

12

18. The appeals are accordingly allowed, leaving the parties to bear

their own costs.

...……………………………J. [Sanjay Kishan Kaul]

...……………………………J. [K.M. Joseph]

New Delhi. January 13, 2020.

13