M. Ramachandran, J. 1. Revision-petitioner/landlady was the respondent before the Rent Control Appellate Authority, Kalpetta in RCA No. 3 of 1989. The matter arises under the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act). The eviction petition filed by her had been allowed, on the grounds of arrears of rent and objectionable subletting by the tenant, but it came to be reversed in appeal.
2. The scheduled items which were shop rooms at Sulthan Bathery had been entrusted on lease to the respondent on 20.8.1961. The petitioner/land lord alleged in the RCP that on 4.9.1986 while the tenant was attempting to hand over a portion (of the holding) to a third party her son had intervened and objected. Alterations also had been made to the shop room, according to her, by partitioning. She had further stated that she had issued a notice on 6.9.1986 terminating the tenancy by 20.10.1986 and had also filed a suit on 8.9.1986 as O.S. No. 438 of 1986 praying for an injunction. It had also been stated that during the above happenings the properly had been given on sub lease and this was done with an intention to over reach the court orders. An injunction order had been passed in the suit and the relief sought for in the RCP inter alia was to give her vacant possession.
3. In the counter-statement filed on 22.9.1987. the respondent had denied the allegations raised in the petilion. He had disputed the arrears claimed; and denied having made material alterations. He also denied having given any sub tease and further had averred that since the petitioner had several buildings in the town, there was no requirement for her for the rooms.
4. In the course of the trial, parties had let in evidence, documentary and oral. By order dated 21.10.1988, the petition was allowed in part, and eviction was ordered under S. 11(2) and 11(4) of the Act.
5. The order made specific reference to the claim under S. 11(4)(i) of the Rent Control Act. Though in the written statement, no contention had been raised that there was no valid notice as envisaged under the statute, we see from the order that the respondent's counsel at the time of arguments, raised objection that there was no notice as envisaged under R.11(4)(i) of the Act. The argument was that sub lease was found according to the petitioner during the first week of October, 1986 and since Ext. A4 notice was on 6.9.1986, the position was that there is no valid notice. The Rent Control Court refused to countenance the contention pointing out that the counter-statement did not raise the issue of validity of notice and the objection was to be presumed as waived.
6. The court thereupon relying on the Commission reports that had been placed on record evidencing the sub lease and other materials that had forthcome, on the authority of the decision reported in 1978 KIT 260 (Kadersha v. Venkitaswamy), allowed the petition for eviction. Thereupon the appeal had been filed by the tenant principally canvassing the correctness of the decision on the issue of sub leasing, and justifiability of the finding ignoring the contention that there was no proper notice.
7. The Appellate Authority, in paragraph 2 of the order, posed the question to be decided, as follows:
"The only question to be decided in this appeal is whether the finding of the learned Rent Controller that the premises in question was subleased by the tenant to RW2 is sustainable."
But immediately thereafter the Court came to a conclusion that the alleged sublease was created subsequent to the sending of the notice dated 6.9.1986.' The appellate authority further found that on the date of inspection of the Commissioner (in O.S. No. 438/1986) on 9.9.1986, there was no sublease found by him and therefore there was no subleasing; but finding was recorded that by the date of the visit by the second Commissioner after the RCP had been preferred there came into existence a sublease. On Ihe overall assessment, the Appellate Authority found the allegation of subletting true. His finding in paragraph 7 of the order is extracted herein below:
"7.1 entertain no doubt on the basis of available evidence that a portion of the front room was subleased by RW1 to RW2. But I cannot accept the case of landlady that at the time of issuing ExL A4 notice RW2 has been in occupation of portion of the demised premises as a sub tenant. From the materials available the conclusion possible is that sublease in favour of RW2 was created subsequent to Ext. A4 and to be precise subsequent to the inspection of suit premises by CW1. The evidence of PW1 and RW1 also fortifies my above conclusion."
8. Based on his finding that the subletting was, after 9.9.1986, the Appellate Authority held that the landlady had not issued notice intimating contravention of the terms of lease, subsequent to the creation of sublease. On this finding the decision was reversed and the order of eviction stands set aside. The landlady has filed the appeal in the aforesaid circumstances.
9. We are of the considered opinion that the Appellate Authority was not justified in entering the findings that there was no proper notice as envisaged under the Act. As the finding is based on mistaken assumption, interference in the decision is warranted.
10. For appreciating the contentions, it will be necessary to extract S. 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965:
"(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,-
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 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."
The preconditions set by sub-cl. (i) has fully been satisfied in this case. The question is how far the proviso comes to the help of the tenant.
11. The proviso as it appears in the Statute was introduced by Act 2 of 1973. Reasons for the enactment for incorporating the proviso as seen published in Kerala Gazette Ex. No. 248 dated 14.5.1971 is the following:
"According to Cl.(i) of sub-s. (4) of S. 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965, a landlord becomes entitled to evict a tenant if, at any time, the tenant has without the consent of the landlord, sub-let the entire building or any portion thereof for however shon a period, if the lease does not confer on him such a right. Therefore it is found desirable to provide some further relief to the ignorant and bonafide tenant by giving him a chance to extinguish the sub-tenancy and which may not at the same lime deprive the landlord of the protection of his rights from the malafide intention of the tenant. It is therefore proposed to add a proviso to the said clause to the effect that an application under that clause-shall be made for the first time, only if the landlord has sent a registered notice to the tenant intimating the contravention of the agreement, and the tenant has failed to extinguish the sub-tenancy within fifteen days of the receipt of the notice or the refusal thereof."
12. Thus and ignorant and bona fide tenant was sought to be given a chance to extinguish the sub-tenancy, and at the same lime landlord's rights were protected from mala fide intention of the tenant. The findings of the lower appellate court reveals that the intention and conduct of the tenant was anything but bona fide. After introducing a sub-tenant, he had taken a stand that there was no sub-tenancy. We are conscious of the principle of interpretation that a proviso expects due and strict obedience. In the context of the relevant section in the Act, it shields a tenant to the fullest extend and even if there is subletting of the first degree, the statute does not differentiate between an ignorant tenant or an unscrupulous tenant. Both of them are to be afforded an opportunity to set right the unauthorised arrangement. Mr. Sen, Counsel for the appellant, contends that his client was aware of the proviso and she had arranged her affairs very much in consonance with the statutory stipulation. According to her, there has been a misreading of the pleadings, by the appellate authority. He argues that the tenant had been acting with impunity and the protection spoken to by the proviso is attempted to be misused. He relied on Ext. A4 notice, and also stressed on the circumstance that by the said notice dated 6.9.1986, time had been granted for vacating the premises, upto 20.10.1986. He also referred to the circumstance that the suit had been filed only during December, 1986 and law does not permit misuse of stipulations intended for protection.
13. Mr. Venkiteswaran, counsel appearing for the tenant had supported the judgment of the appellate rourt. Reference was made to decision in Salestax Officer v. Hanuman Prasad (AIR 1965 SC 565) and he had submitted that the scope and function of a proviso has been considered in the judgment. According to him, and rightly so, a proviso is added to a principal clause primarily with the object of taking out of the scope of that principal clause, what is included in it and what the law makers desired should be excluded in specified circumstances. A notice after the factum of subletting therefore was mandatory and since the precondition was absent, the counsel urged, the proceedings were not maintainable in law, and the petition was correctly dismissed.
14. On examining the rival contentions, we find that the appellate court has been unnecessarily carried away from the most relevant factors. Ext. A4 notice dated 6.9.1986 has been properly proved. Ext. A4(a) is the acknowledgment of the respondent thereto, and he has received it on 12.9.1986. The document specifically refer to arrears of rent, the need of the landlady for own occupation and also pointed out the subletting. They are urged as reasons for terminating the tenancy by 20.10.1986. We note that what is emphasised by the proviso is the sending of the registered notice to the tenant intimating the contravention of the condition of lease and there has been a subletting. Ext, A1 lease deed did not authorise for a subletting of the holding. The provision of the Act also recognises it as a violation of the tenancy arrangement. Since the registered notice was served and as there was no positive response and as the petition was filed well after a months of its service, we are of the opinion that there is sufficient compliance with the statutory stipulation contained in S. 11(4)(i) of the Act.
15. The Appellate Authority evidently had misdirected itself by reading the petition filed in the RCP. Repeatedly there were averments incorporated therein to the effect that there was subletting, and the Court read into it that the subletting was after filing the suit on 8.9.1986, and hence there was no compliance. On a reading of the pleadings, we find that the consistent case of the appellant was that there was subletting from 4.9.1986. Such an allegation has been incorporated in Ext. A4 notice dated 6.9.1986. The precondition prescribed by the proviso for filing the petition was therefore fully satisfied. In such circumstances, hairsplitting arguments on the plaint allegations was immaterial and inconsequential. What was important was the preceding registered, notice. What we find is that there was no attempt made to convince the appellate court, but all steps were successfully employed to confuse it,
16. We are sure in our mind that under S. 11(4)(i) of the Act the landlord alone is the master of the situation. He has no duty to convince any third person about a subtenancy at the stage of notice; a different interpretation would well near be impossible. In the proceedings thereafter, he has to convince the Court about the subletting, and therefore an imaginary noiice cannot confer on him any real benefits. On the facts of this case, it is not possible to presume that without bonafides the landlord was pointing out imaginary subletting. The contention that there was a defective notice therefore is without substance.
17. For the foregoing reasons, we set aside the judgment of the Appellate Authority that there was no compliance with the prescription laid down by S. 11(4)(i) of the Act. The RCP and consequently the CRP will stand allowed as the landlady has been successful in establishing the subletting by the tenant. His refusal to revert to the status quo ami to Ext. A4 notice was unsupportable and constituted sufficient grounds for eviction.
The parties will bear their respective costs.