K. LUBNA & ORS.versusBEEVI & ORS.

                          [2020] 1 S.C.R. 967                            967


                        K. LUBNA & ORS.                                  A
                                  v.
                          BEEVI & ORS.
               (Civil Appeal Nos. 2442-2443 of 2011)
                        JANUARY 13, 2020                                 B
      [SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]
       Kerala Buildings (Lease and Rent Control) Act, 1965 –
s.11(4)(i) – Eviction of tenants – Sub-tenancy – Appellants-owners
alleged that respondents-tenants stopped the payment of rent of
                                                                         C
three shop room premises, defined as room nos. 3/471, 3/472 and 3/
476, and it was also alleged that two shops were sublet by the
respondent without the consent of the appellants – The appellants
sent a legal notice dated 15.12.1987 demanding surrender of
possession of suit shop rooms and arrear of rent, and ultimately
filed an eviction petition before the Rent Control Court – The Trial     D
Court found against the appellants on all grounds except non-
payment of rent while granting a decree of eviction for all the three
shops – The Appellate Authority found bonafide need of appellant
in respect of room no. 3/472 and sub-letting in respect of room no.
3/476 was proved – Thus, eviction was granted by the Appellate
                                                                         E
Authority in respect of room nos. 3/472 and 3/476 – The High Court
in the cross- revision petitions sustained eviction order only qua
room no. 3/476 on the ground of sub-letting – Before the Supreme
Court, the appellants contended that u/s. 11(4)(i) of the Act, 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 respondents    F
dissuaded from examination of this plea in view of it not having
been raised at an earlier stage and thus, no factual basis being
laid for the same – Held: On the legal principle, a pure question of
law can be examined at any stage, including before the Supreme
Court – If the factual foundation for a case has been laid and the
                                                                         G
legal consequence of the same have not been examined, the
examination of such legal consequence would be a pure question
of law – The finding of fact in the instant case was not required to
be closely scrutinised as the essential facts, which were analysed
by the Courts below, clearly show the existence of a single tenancy
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                                 967
968            SUPREME COURT REPORTS                         [2020] 1 S.C.R.


A     – 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 – Further, under the statute,
      sub-letting of any part of the tenanted premises gives right to eviction
      from the whole premises – Thus, the appellants entitled to a decree
      of eviction for the entire premises, mentioned as tenanted premises,
B
      on the ground of the respondents having sub-let a part of the
      premises.
            Allowing the appeals, the Court
             HELD: 1. The judicial pronouncements of this Court in M.
C     Meeramytheen & Ors. v. K. Parameswaran Pillai & Ors. which
      deals with the very Kerala Buildings (Lease and Rent Control)
      Act, 1965. 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
D     allotted to the share of different co-sharers who joined together
      in the suit proceedings seeking eviction of tenants as sub-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-
E     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 of the Act. [Para 13]
F     [974-C-E]
            M. Meeramytheen & Ors. v. K. Parameswaran Pillai &
            Ors. (2010) 15 SCC 359 – relied on.
             2. The aforesaid judgment, covers the legal principle on all
G     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
H
              K. LUBNA & ORS. v. BEEVI & ORS.                            969


intimating the contravention of the said condition of the lease          A
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 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
                                                                         B
statute reads and that is also, 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     C
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
                                                                         D
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. [Para 14][974-F-G; 975-A-D]                                    E
      3. Thus, 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. [Para 16][975-F]
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2442-              F
2443 of 2011.
      From the Judgment and Order dated 30.10.2007 of the High Court
of Kerala at Ernakulam in Civil Revision Petition Nos. 1959 of 1998
and 1175 of 2000.
                                                                         G
      K. Rajeev, Adv. for the Appellants.
      Raghenth Basant, Ms. Mahamaya Chatterjee, Ms. Liz Mathew,
Advs. for the Respondents.

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970             SUPREME COURT REPORTS                           [2020] 1 S.C.R.


A           The Judgment of the Court was delivered by
            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
B     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 by a registered document. This transfer/assignment
      was intimated to original respondent No.1 (now represented through his
C     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
D     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
E     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
F     an eviction order is passed, one month’s time or any further time as
      deemed 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
G     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
H     rooms 3/472 and 3/476 vide order dated 9.7.1998.
               K. LUBNA & ORS. v. BEEVI & ORS.                                  971
                  [SANJAY KISHAN KAUL, J.]

       3. The aforesaid order resulted in cross-revision petitions by both      A
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
                                                                                B
that the endeavour of eviction from Room Nos.3/471 and 3/472 failed,
while 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       C
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      D
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:
                                                                                E
      “11. Eviction of tenants.—
      xxxx                xxxx              xxxx              xxxx
      xxxx
      (4) A landlord may apply to the Rent Control Court for an order
      directing the tenant to put the landlord in possession of the             F
      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:                  G
          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   H
972             SUPREME COURT REPORTS                           [2020] 1 S.C.R.


A               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:
B           “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-
C
            (a) …..
            (b) …..
            (c) …..”
             6. In order to appreciate the controversy, we deemed it appropriate
D
      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
E     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.
F            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
G     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 only plea to
      be examined by us in view of the finding of fact recorded by the three
      courts.
H
                K. LUBNA & ORS. v. BEEVI & ORS.                                973
                   [SANJAY KISHAN KAUL, J.]

        8. Learned counsel for the respondents endeavoured to dissuade         A
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.,
                                                                               B
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      C
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          D
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        E
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              F
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     G
      plea. The expediency of adopting that course may be doubted
      when the plea cannot be disposed of without deciding nice questions

1
  Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari 1950 SCR 852
2
  AIR 1965 SC 1325
3
  1892 A.C. 473                                                                H
974               SUPREME COURT REPORTS                         [2020] 1 S.C.R.


A              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
B     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
C     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
D     who joined together in the suit proceedings seeking eviction of tenants
      as sub-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.
E     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.

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

      4
H         (2010) 15 SCC 359
                K. LUBNA & ORS. v. BEEVI & ORS.                                  975
                   [SANJAY KISHAN KAUL, J.]

Thus, sub-letting of any part of the tenanted premises gives right to            A
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
                                                                                 B
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.           C
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.
                                                                                 D
       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            E
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,      F
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.
                                                                                 G
       18. The appeals are accordingly allowed, leaving the parties to
bear their own costs.


Ankit Gyan                                                    Appeals allowed.
                                                                                 H