T.K. LATHIKA versus SETH KARSANDAS JAMNADAS

Citation: [1999] SUPP. 2 S.C.R. 116 · Decided: 31-08-1999 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Dismissed

Judgment (excerpt)

A 
B 
c 
T.K. LATHIKA 
v. 
SETH KARSANDAS JAMNADAS 
AUGUST 31, 1999 
[K.T. THOMAS AND A.P. MISRA, JJ.] 
Rent Control and Eviction : 
Kera/a Buildings (Lease and Rent Control) Act, 1965: 
Section 11 (3) third proviso-Eviction petition-Maintainability-
Landlord filed eviction petition before expiry of one year after execution of 
gift deed in her favour-Held: Third proviso to S.11 (3) prevents the landlord 
from filing eviction petition before expiry of the moratorium period of one 
year-Hence, eviction petition has to be dismissed on that sole ground-
D Court should not have gone into merits of the case because whatever is said 
or found would be without jurisdiction-High Court erred in going into the 
merits of the case and giving a finding without first deciding the 
maintainability of the petition. 
E 
Seption 11 (3) third proviso-Eviction petition-Filing of-Suit 
property-Right of Recovery-Arose to landlord under an instrument of 
transfer inter vivos_.:.Subsequently, landlord entered into a new lease 
terminating the earlier one-Held: The third proviso would still continue to 
prohibit the landlord from filing the eviction petition for a period one year 
from the new lease deed-The reason is that his right to recover possession 
p would then arise under that new instrument of lease which would also be 
inter. vivos as envisaged in the third proviso. 
Transfer of Pr_operty Act, 1882: 
Section 111 (f)-Lease-Implied surrender-Determination of-Held: 
G When a new relationship of lessor and lessee comes into existence regarding 
the same subject matter, the two sets cannot co-exist, being inconsistent and 
incompatible between each other-The new lease can come into effect only 
on termination of the earlier lease-Then only the earlier lease would be 
deemed to be terminated-A mere alteration or improvement or even 
impairment of the relationship of lessor and lessee would not ipso facto 
H 
116 
T.K. LATHIKA v. SETH KARSANDAS JAMNADAS 
117 
amount to implied surrender of lease. 
Practice and Procedure: 
Suit-Maintainability-Held: Question of maintainability has to be 
decided first-If maintainable then only merits should be gone into. 
Words and Phrases: 
"Inter vivos "-Meaning of-In the context of S.11 (3) third proviso to 
the Kera/a Buildings (Lease and Rent Control) Act, 1965. 
Doctrine: 
Doctrine of Implied Surrender of /ease-Discussed 
The Appellant-landlord became the owner of a building after execution 
A 
B 
c 
of a gift deed by her father in her favour. The respondent-tenant executed a 
fresh .lease agreement in favour of the appellant, which provided for a marginal D 
increase in rent and the lessor was the appellant. The appellant, without 
waiting for the expiry of the moratorium period of one year prescribed under 
third proviso to Section 11(3) of the Kerala Building (Lease and Rent Control) 
Act, 1965, filed an eviction petition on the ground of bona fide requirement. 
The trial court bypassed the ban contained in the third proviso to E 
Section 11 (3) of the Act and considered the merits of the case and allowed 
the petition. However, the Appellate Authority reversed the findings both on 
the maintainability of the petition and also the merits of the claim for eviction 
and dismissed the petition. The revisional authority confirmed the said 
findings. The High Court, without going into the question of maintainability F 
of the petition, entered into the merits of t)1e case and dismissed the writ 
petition of the appellant. Hence the appeal. 
On behalf of the appellant it was contended that there was an implied 
surrender of the old lease under Section 11 l(f) of the Transfer of Property 
Act, 1882 when the new lease was executed and, t~erefore, the appellant had G 
the right to recover possession notwithstanding the ban contained in the 
third proviso to Section 11(3) of the Act. 
Dismissing the appeal, the Court 
HELD: 1. If the ban contained in the third proviso to Section 11(3) of H 
118 
SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R. 
A the Kerala Buildings (Lease and Rent Control) Act, 1965 applies, its corollary 
is that the petition filed by the landlord has to be expelled on the sole ground 
that the landlord was then not entitled to file it. In such a situation the court 
should not enter into the merits because whatever is said or found on the 
merits would then be without jurisdiction. High Court should have first 
B decided the question of maintainability of the petition and only ifthat point

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