Appellate Division Cases
(Civil)
PARTIES
Hafiz Md. Shamsul Alam & others …………………..Appellants
-vs-
Musleuddin Ahmed & others …………………………Respondents
JUSTICE
Md. Ruhul Amin .J
M.M. Ruhul Amin. J
Md. Tafazzul Islam. J
JUDGEMENT DATE: 8th August, 2004
The Transfer of Properly Act, Section 106, 107, 108.
The Premises Rent Control Act, SubSection(l) of Section 18 .
Unregistered argument one, was valid for one year only as per provisions of section 107 of the Transfer of Property Act and after the expiry of the period of one year the parties would be guided by the provisions of Premises Rent Control Act, 1991. Sub letters premises without the written permission of the landlord and on this ground alone the defendants are liable to be evicted from the suit premises…………..(19)
We are of the view that the High Court Division committed an error of law in not
holding that the nature and character of the tenancy has been changed with the formation of partnership business from proprietorship business by the defendants and induction of defendant Nos. 2 and 3 as subtenants in the premises was made by defendant No. 1 without the written permission of the landlord and accordingly the defendants are guilty of subletting and hence the impugned judgment requires interference by us …………………… (21)
Civil Appeal No. 190 of 2002. (From the judgment and order dated 13.12.2000 passed by the High Court Division in Civil Revision No. 4348 of 1999)’
A.J. Mohammad Ali, Senior Advocate (Mr. Fozlul Karim, Senior Advocate with him}
instructed by Mr. Ataur Rahman khan, Advocate -on -Record ………For the Appellants
Mahbubey Alain, Senior Advocate instructed by Mr. Md. Aftab Hossain, Advocate-on-
Record …………………..For the Respondent Nos : 1-2
No represented…………………. Respondent No. 3
JUDGMENT
1. M.M. Ruhul Amin, J: This appeal by leave is directed against the judgment and order
dated 13.12.2000 passed by a Single Bench or the High Court Division in Civil Revision No. 4348 of 1999 discharging the Rule.
2. Short facts are that plaintiff Nos. 1 and 2 and their father purchased holding No. 99 of
Nawabpur Road. Dhaka in the year 1973 and at that time one Younus Chandana was the tenant in the suit premises and he accepted the plaintiffs as his landlord. Younus Chandana stopped payment of rent since May 1974 and he also inducted defendant No. 1 and one Altaf Hossain as sub-tenant in the premises in suit. Altaf Hossain filed House Rent Case No. 419 of 1974 impleading father of the plaintiff Nos. 1 and 2. The said Rent Control Case was compromised and the landlord. Accepted defendant No. 1 and Altaf Hossain as tenants in the suit premises. Plaintiffs” father made a gift of the suit premises
to the plaintiff No. 3 to the knowledge of all concerned. Defendant No.l requested the plaintiffs to recognize him as the tenant after Altaf Hossaon left the partnership business. Plaintiffs accepted defendant No. I as the sole tenant. Defendant No. 1 inducted defendant Nos. 2 and 3 as sub-tenants and stopped payment of rent from January 1994 and started House Rent Case No. 4 of 1994. the plaintiffs terminated the tenancy by serving notice under section 106 of the Transfer of Property Act effective from September 1994 and requested the defendants to hand over vacant possession of the premises but they failed.
3. The defendants contested the suit by filing written statement and contended, inter alia.
that M/S Chandana Corporation, a partnership firm was the tenant in the suit premises as per agreement dated 01.08.1961 with Younus Ali, Sajeda Khatun and Mussamat Zaitun Nessa and one of the terms and conditions of the agreement was that in case of default in the payment of rent for three consecutive months the landlord would have the right to evict the tenant. Md. Younus Chandana took over the business of M/S Chandana Corporation from 01.04.1971 and a deed of agreement was executed on 28.04.1971 between Younus Chandana and Younus Ali. Sajeda Khatun, Musammat Zaitun Nessa and in the said deed of agreement there was stipulation for enabling sub-letting of the
premises with the prior permission of the landlord and in case of default in the payment of rent for three consecutive months landlord would have the right to get the tenant or tenants evicted. Younus Ali, Sajeda Khatun, Musammat Zaitun Nessa transferred the premises in suit to Hafizuddin Ahmed, father of plaintiffs and Younus Chandana sent a letter on 18.04.1973 to M/S Chandana Corporation requesting it to attorn the transferee and to pay rent and M/S Chandana Corporation continued to be a tenant under the new landlord as per terms and conditions of deed of agreement dated 28.04.1971. on retirement of Younus Chandana partnership firm M/S Chandana Corporation was reconstituted with defendant No.l and Altaf Hossain and the new partners of M/S Chandana Corporation were accepted as tenants of the premises by the landlord and later
on Altaf Hossain retired from the partnership business of M/S Chandana Corporation and
defendant No.2 was taken as partner from 01.04.1994. Defendants on 05.02.1994 offered
rent for the month of January, 1994 to the landlord and the landlord asked the defendants to pay the rent for the month of January, 1994 along with the rent for the month of February, 1994 as printed rent receipts were not available and accordingly defendant offered rent for the months of January and February, 1994 on 01.03.1994 but the landlord refused to accept rent and thereupon rent was remitted by postal money order on 01.03.1994 and 06.03.1994 for the respective months and the money orders so sent having returned the defendants filed House Rent Control Case No. 4 of 1994.
4. The further case of the defendants is that they are not the defaulters in the payment of
rent since they have not defaulted in the payment of the rent for consecutive three months in terms of the agreement dated 01.08.1961 and April 28, 1971 and as such they are not liable to be evicted on the ground of default in the payment of rent.
5. The learned S.S.C Judge dismissed the suit. Being aggrieved the plaintiff-appellants
moved the High Court Division in revisional jurisdiction under section 25 of Small Cause
Courts Act. The High Court Division discharged the Rule on the findings that the landlord having refused to accept the rent for the months of January and February, 1994 the rent for the said months were remitted by postal money order on 01.03.1994 and 06.03.1994 respectively and the money order having returned the rent for the months of January to March, 1994 was deposited on 05.04.1994 and as such “it can not be suggested that there had been any default on the part of tenant defendants in respect of payment f rent.” and that tenant defendants sent rent for the months of January and February, 1994 on 01.03.1994 and 06.03.1994 respectively which is very much within three months as stipulated in clauses 5 and 6 of Deeds of Agreement dated 01.08.1961
and 28.04.1971″. the High Court Division further observed that the judgment of the S.C.C. Court Judge cannot be said that the same is not “rooted in evidence and materials on record and went against weight of evidence on record.”
6. Leave was granted to Consider the following grounds:- (i) “For that the learned Single Judge acted illegally in holding that the deed of agreement, exhibit-‘kha’ dated 28.04.1971 with the previous landlord excludes the operation of the provision of the premises Rent Control operation of the provision of the premises Rent Control Ordinance in cases of default becausea) the plaintiff, transferee landlord dated 09.04.1973; b) the letter of attornment, exhibit ‘Ga’ dated 18.041973 does not refer to the period of default in payment of rent as a precondition for the eviction of the tenant; c) the tenant defendant belonged to a partnership firm which commenced since 01.01.1974 long after the agreement exhibit”kha” dated 28.04.1971 with a proprietary firm. (ii) “For that the tenant defendant having deposited the rent for 3 months beginning from January to March, 1974 on 05.04.1994 when the 3 months have already expired and the tenants are already in default for a continuous period of 2 months, the learned Single Judge of the High Court Division is wrong in holding that the tenants are not defaulter in the case”.
7. We have heard Mr. A.J. Mohammad Ali, the learned Counsel for the appellants and Mr. Mahbubey Alam, the learned Counsel for the respondents and perused the judgment of the High Court Division and other connected papers.
8. It is undisputed that plaintiff Nos. 1 and 2 and their father purchased the disputed premises namely holding No. 99 of Newabpur Road, Dhaka in the year 1973 and at that time one Younus Chandana was the tenant in the disputed premises and he accepted the plaintiffs as his landlord. It is also undisputed that Younus Chandana inducted defendant No. 1 and one Altaf Hossain as sub-tenant in the disputed premises. Altaf Hossain filed House Rent Case No. 419 of 1974 against the plaintiffs. The case was compromised and the plaintiffs accepted defendant No. 1 and Altaf Hossain as tenants in the suit premises. It is also undisputed that subsequently plaintiffs’ father made a gift of the suit premises to the plaintiff No. 3. Subsequently Altaf Hossain left the suit premises and the plaintiffs accepted defendant No.l as the sole tenant.
9. The plaintiffs’ case is that the defendant No. 1 inducted defendant Nos. 2 and 3 as subtenants and stopped payment of rent and they also started House Rent Case No.4 of 1994 and the plaintiffs terminated the tenancy by serving notice under section 106 of the Transfer of Property Act. The defendants’ contention on the other hand is that M/S. Chandana Corporation, a partnership firm was the tenant in the suit premises as per agreement dated 01.08.1961 with Younus Ali, Sajeda Khatun and Musammat Zaitun Nessa and one of the terms and conditions of the agreement was that in case of default in the payment of rent for three consecutive months the landlord would have the right to evict the tenant. The further case of the defendants is that Md. Younus Chandana took over the business of M/S. Chandana Corporation from 01.04.1971 and a deed of agreement was executed on 28.04.1971 between Younus Chandana and Younus Ali.
Sajeda Khatun, Musammat Zaitun Nessa and in the said deed of agreement there was stipulation for enabling sub-letting of the premises with the prior permission of the landlord and that in case of default in the payment of rent for three consecutive months landlord would have the right to get the tenant or tenants evicted. Their further case is that after the plaintiffs became owners of the disputed premises, M/S. Chandana
Corporation continued to be tenant under the new landlord as per terms and conditions of
deed of agreement dated 28.04.1971. Their further case is that they are not defaulters.
10. From the deed of agreement dated 01.08.1961 executed between Sajeda Khatun
wife of Md. Younus Ali, Mussamat Zaitun Nessa wife of Md. Yousuf Ali and M/S.
Chandana Corporation it appears that the tenants had no right to sub-let the said shop room or portion thereof to a third party without the written permission from the landlord. It further appears that Younus Ali executed the agreement in his personal capacity and not as proprietor of M/S. Chandana Corporation. Agreement dated 28.04.1971 executed between Sajeda Khatun wife of Md. Younus Ali, Musammat Zaitun Nessa wife of Md. Yousuf Ali and Md. Younus Chandana shows that Md. Younus Chandana entered into the agreement as proprietor of M/S. Chandana Corporation. In this agreement it was
stated that the partnership business of M/S. Chandana Corporation was dissolved and Md.
Younus Chandana became the sole proprietor of the business. It further appears that one of the terms and conditions of the agreement was that the tenants shall have the right to sub-let the said shop room or any portion thereof to a third party without the prior permission of the landlord subject to an enhancement of 25% of the rent of the shop or proportionate rent for the portion thereof prevailing at the time of sub-letting, payable to the landlord. There was no stipulation to effect that in case of default in payment of rent for three consecutive months, the landlord shall have the right to get the tenants evicted from the said shop and take possession thereof.
11. The learned Advocate for the appellants arsued that the deed of agreement dated
28.04.1971 between Md. Younus Ali. Sajeda Khatun and Zaitun Nessa and Md. Younus
Chandana was an unregistered one and as such as per provisions of section 107 of the Transfer of Property Act the same was valid for one year only and after the expiry of one year it does not hold good. Accordngly the terms and condition of the agreement are not binding upon the parties and in the absence of any written registered agreement the parties will be guided by the provisions of Premises Rent Control Act, 1991. He further submitted that according to the provisions of Premises Rent Control Act. 1991 the
tenancy has been terminated by serving notice under section 106 of the Transfer of Property Act as the tenants inducted sub-tenants in the premises without written permission of landlord.
12. The learned Advocate for the respondents, on the other hand, submitted that the
agreement datcd28.04.197] still holds good and the parties are bound by the terms and conditions of that agreement and the provisions of Premises Rent Control Act, 1991 are not applicable in the present case. He further submitted that from the rent receipts granted by the appellant Ext. Ja series it is clear that those were granted in favour of M/S Chandana Corporation and in some of the receipts the name of partner Moslehuddin was mentioned. He drew our attention to the terms and condition on the reverse side of the rent receipts wherein it was mentioned that the tenants will be liable to be evicted if the tenants default in payment of rent for three consecutive months. The learned Counsel further argued that since the plaintiffs could not prove that the defendant defaulted in payment of rent for consecutive three months they are not defaulters and hence not liable to be evicted on this count.
13. The defendants” further case that defendant No. 2 Mrs. Momtaj Haq was inducted
in the partnership business of M/S. Chandana Corporation in place Md. Altaf Hossain from April, 1994 is not supported by any document. Similarly the case of the defendants
that defendant No. 3 is an employee of the firm is also not supported by any evidence.
The partnership deed dated 01.01.1974 shows that the same was entered into between Md. Younus Chandana, Muslehuddin Ahmed and Altaf Hossain and each of them had ^ share in the partnership business as it appears from terms and condition No. 10 of the partnership deed. It appears that the agreement Ext. Kha was executed on 28.04.1971 and the partnership deed was executed on 01.01.1974. So the partnership firm which commenced on 01.01.1974 that is long after the agreement Ext. Kha with the proprietorship firm can not be a defence for the defendant as claimed by them.
14. The plaintiffs became transferee landlords on 09.04.1973 and the letter of attornment
Ext. Ga is dated 18.04.1973 and so the letter of attorn does not refer to the period of
default in payment of rent as pre-condition for eviction of tenants as claimed by the appellant.
15. Thus it is clear that the nature of tenancy was changed with the formation of partnership firm without the prior permission of the landlord from proprietorship firm.
16. We have already pointed out that there is no documentary evidence regarding the
claim of the defendants that defendant No.2 was inducted as partner of the business in place of Altaf Hossain and that defendant No. 3 is an employee of the firm.
17. Therefore it is clear that defendant Nos. 2 and 3 were inducted in the premises by the
defendant No. 1 without prior written permission of the landlord and this is in clear violation of the terms and conditions of the agreement and accordingly defedant No.l is guilty of Subletting the premises without prior written permission from the landlord and therefore is liable to be evicted on this count.
18. Sub-section(l) of Section 18 of the Premises Rent Control Act, 1991 provides that
where that where the tenant has done any act of section 108 of the Transfer of Property
Act or in absence of any contract, the tenant has without consent is writhing of the landlord, sublets the premises in whole or in part, or where the tenant has been guilty of conduct which is a nuisance or any annoyance to occupiers of adjoining or neighboring premises or where the tenant uses the premises for his financial benefit or gives permission thereof, or where the premises are bonafide required by the landlord or for his own beneficiaries which the court thinks fit then only the tenant shall be evicted for any default of payment or irregular payment the tenant shall be treated as defaulter. In such
case the tenant shall have no claim for the benefit under section 18.
19. We have already noticed that the agreement of tenancy dated 28.04.1971 Ext. Kha being an unregistered one. was valid for one year only as per provisions of section 107 of the Transfer of Property Act and after the expiry of the period of one year the parties would be guided by the provisions of Premises Rent Control Act. 1991. We have held that defendant Nos. 2 and 3 were inducted as sub-tenants by the defendant No. 1 without the written permission of the landlord and on this ground alone the defendants are liable to be evicted from the suit premises.
20. In our view the plaintiffs could not prove that the tenants have failed to pay rent for
three months consecutively in view of our foregoing discussion on the point. So. on this
2round the defendants are not liable to be evicted.
21. In the facts and circumstances of the case and in the light of the discussion made above, we are of the view that the High Court Division committed an error of law in not holding that the nature and character of the tenancy has been changed with the formation of partnership business from proprietorship business hy the defendants and induction of
defendant Nos. 2 and 3 as sub-tenants in the premises was made by defendant No. 1 without the written permission of the landlord and accordingly the defendants are guilty of subletting and hence the impugned judgment requires interference by us. The appeal, therefore, is allowed with costs.
Ed
Source: I ADC (2004), 488