IMPORTANT POINT
The consent to sub-letting as envisaged in Section 11(4)(i) of Kerala Buildings (Lease and Rent Control) Act, 1965 would mean consent with same positive act which may lead to inference of conferring right on the tenant to sub-let the premises and mere inaction, silence or accepting rent would not be sufficient to amount to implied consent on the part of the landlord.

Headnote:(i) Kerala Buildings (Lease & Rent Control) Act, 1965-Sections 11(4)(i) and 20-Eviction petition on ground of sub-letting-Dispute about consent for sub-letting-No lease in writing-Oral evidence of CPW2 a former director of tenant Co.-Appreciation of evidence-Trial Court, reading whole statement, held no oral or implied consent-Appellate Court, reading examination-in-chief, held there was consent for sub-letting-High Court in revision under Section 20 disturbing finding of Appellate Court as perverse and believing Trial Court-Whether sustainable in law? (Yes) (Para 16)-There was no lease arrangement to sub-let in 1949 orally.
       (ii) Kerala Buildings (Lease & Rent Control) Act, 1965-Section 11(4)(i)-Sub-letting prior to Act and after-Point of implied consent by conduct of landlord having knowledge and accepting rent-Appellate Court holding there was implied consent by knowledge and waiver of consent by acceptance of rent-High Court not accepting it in revision under Section 20-Finding of 32 years inaction by landlord since 1949 and 10 and 7 years for 1971 and 1977 sub-letting-Meaning of words consent , confer right to sub-let in Section 11(4)(i)-Whether inaction of land lord in this case leads to inference of implied consent to sub-lease? (No)-Revision Court upsetting Appellate Court-Justified ?(Yes)-Appeal against dismissed -Order of eviction by R.C. affirmed.
       Held : A perusal of the relevant provision as quoted above clearly indicates that the landlord can claim possession of the building from the tenant in case of sub-letting by the tenant without the consent of the landlord, in case the lease does not confer on the tenant a right to sub-let. The provision provides for "conferment" of right on the tenant to sub-let the accommodation. That is to say, so as to be entitled to sub-let, the tenant must be granted that right to do so, by the landlord. But inaction in every case does not necessarily lead to an inference of implied consent of acquiescence. (Para 10)
       A distinction has also been drawn between Acquiescence and Consent . The word `consent as used in cl. (i), sub-section (4) of Section 11 of the Act when read in the background of the word confer in the latter part it will only mean that consent has to be with some positive action on the part of the landlord so that the tenant can be said to have had the authority to sub-lease his lease rights. Mere silence may not be enough. (Para 11)
       That the inference drawn from findings of fact is a legal question. (Para 12)
       Held finally : In view of the discussion held above, we find no reason to interfere with the order passed by the High Court setting aside the orders of the appellate authority and upholding the orders of the trial court, refusing to draw any inference of implied consent on the basis of inaction or conduct of the landlord. The consent as envisaged under Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act 1965 would mean consent with some positive act which may lead to inference of conferring right on the tenant to sub-let the premises and mere inaction would not be sufficient to amount to implied consent on the part of the landlord. In the result, the appeal is dismissed. However, there would be no order as to costs. (Para 13)

JUDGMENT

Brijesh Kumar, J.-Leave granted.

The appellant in this appeal has impugned the judgment and order dated 26.6.2001 passed by the Kerala High Court, allowing the civil revision preferred by the respondent-landlord, setting aside the appellate order and holding that the Rent Controller was justified in passing an order of eviction of the tenant-appellant under Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act 1965.

2. The facts which do not admit the dispute are that the accommodation in question originally belonged to the grand father of the present respondent, who died in the year 1953. It came down to the father of the respondent who also died some time 1976. The property ultimately came to the respondent. In the year 1949 Shri P. George, grand father of the respondent rented out the premises to the appellant-company which was sub-let to different sub-tenants from time to time. The respondent gave notice to the appellant on 17.11.1981 to terminate the sub-lease arrangements but the tenant failed to comply with the notice. Ultimately John P. Thomas-respondent filed RCP No. 16 of 1982 in the Court of Rent Controller Kottayam. The eviction was sought on the ground that the appellant - tenant had transferred his rights creating sub-leases in favour of several persons without the consent of the landlord. One of the sub-tenants had even been running a printing press in the premises whereas according to the case of the landlord the premises were let out to the appellant for its use as an office and godown. The petition was contested but the fact of sub-letting was not denied. On the other hand, it was pleaded that one sub-lease was created initially in 1949 itself when the premises were taken by the appellant on rent which fact was within the knowledge of the grand father and the father of the respondent as well as that of the present respondent. Admittedly, a few more sub-leases were created in 1970s. Nobody ever objected to the same. It could thus well be presumed that the landlord had consented to the sub-letting which was within their knowledge. There does not seem to be any document of lease. The appellant also produced one CPW2 in evidence who had been one of the Directors of the appellant Co. from 1946 to 1960. According to him negotiations of rental arrangement took place in his presence and the arrangement of letting included sub-letting as well.

3. The Rent Controller on consideration of the evidence adduced by the parties as well as other material on the record came to the conclusion that there has not been any positive conferment of right upon the appellant to sub-let or transfer the rights under the lease. While appreciating the evidence the trial court observed that in so far the evidence of CPW2 is concerned, in cross-examination he has stated that there was no document of lease and had no knowledge whether any decision was taken by the Board of Directors of the Company in regard to the tenancy or the terms thereof. He also stated that terms of rental arrangement were not discussed and there was no evidence on record which may have been kept in the records of the company regarding the same nor he remembered what happened in 1949. The trial court considering other parts of his statement as well found that his evidence was unworthy of credence and that of an interested person and observed "therefore I dis-believe CPW2 and render his evidence as unreliable". The petition thus filed by the respondent - landlord was allowed holding that there was no consent of the landlord for sub-tenancies created by the appellant.

4. The tenant filed an appeal before the Rent Control Appellate Authority, Kottayam. The appeal was allowed by order dated February 21, 1992. The appellate court recorded a finding to the effect "in the absence of any evidence either oral or documentary the terms of tenancy have to be gathered from the long course of conduct of the parties ever since commencement of the tenancy in 1949

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2002 Supreme(SC) 580

Cases Referred (3)