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ANITA MALHOTRA Date: 2020.01.13 17:48:02 IST Reason:
IN THE SUPREME COURT OF INDIA
K. LUBNA & ORS.
BEEVI & ORS.
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
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
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
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
3.The aforesaid order resulted in
eviction order qua Room No.3/476 on the ground of
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
“11. Eviction of tenants.—
(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
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:
(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-
6.In order to appreciate the controversy, we deemed it appropriate to
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
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.
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
“….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
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
4(2010) 15 SCC 359
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
14.The aforesaid judgment, in our view, covers the legal principle on all fours. A bare reading of
of the notice, an application for eviction could be made by the landlord. Thus,
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-
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
17.In the given facts of the case, we grant the respondents six (6) months’ time to vacate the premises.
18.The appeals are accordingly allowed, leaving the parties to bear their own costs.
[Sanjay Kishan Kaul]
New Delhi. January 13, 2020.