IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 RCRev..No. 158 of 2006(H/C) ------------------------ RCA.156/2005 of ADDL.DISTRICT COURT, KOZHIKODE RCP.3/99 of RENT CONTROL COURT, KOZHIKODE .................... REVISION PETITIONER/APPELLANT/RESPONDENT: ------------------------------------------------------- M/S.ALLIED SALES CORPORATION, M.G.ROAD, ERNAKULAM, COCHIN 16. BY ADV. SRI.A.V.THOMAS SRI.GEEMON VARGHESE ALEX SRI.NIDHI SAM JOHN RESPONDENT(S)/RESPONDENT/PETITIONER: ------------------------------------------------- M/S.NEW SANTHA BHAVAN TOURIST HOME, M.P.ROAD, KOZHIKODE, REPRESENTED BY CHENAR VEETTIL KOOTTIL CHANDRAN, S/O.CHANDUKUTTY. ADV. SRI.C.P.MOHAMMED NIAS THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.1189/2006 IN RCR.158/2006 DISMISSED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 14.7.2010 okb /True copy/ P.A. to Judge PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- R.C.R. No.158 of 2006 ---------------------------------- Dated this the 14th day of July, 2010 O R D E R --------------- Pius C.Kuriakose,J. The tenant, against whom order of eviction has been concurrently passed by the Rent Control Court and the Appellate Authority on the ground of subletting under Section 11(4)(i), is the revision petitioner. The landlord's allegation was that the tenant is M/s. Allied Sales Corporation and that the building has been sublet by M/s. Allied Sales Corporation to M/s. New Jayadeep Agencies and that despite statutory intimation notice under the proviso to Section 11(4)(i) this sub-lease was not terminated. The defence of the tenant/revision petitioner was that there is neither subletting nor transfer of possession. The tenant all along retained possession. Alleged sub-lessee is only the nominated dealer of the tenant. One set of the keys of the building is even now retained by the tenant though the second set is given to the nominated dealer. The statutory authorities on appreciating RCR.158/06 2 and re-appreciating the evidence that came on record came to the conclusion that there is objectionable subletting and ordered eviction. 2. In this revision under Section 20 various grounds have been raised by the revision petitioner assailing the judgment of the Appellate Authority and we have heard the submissions of Sri.A.V.Thomas, learned counsel for the revision petitioner and those of Mr.C.P.Mohammed Nias, learned counsel for the respondent. Very strong reliance was placed by Sri.A.V.Thomas on the judgment of this court in Pankajam Vs. Radha Nedumgadi and another [2004 (1) KLJ 164] to which one among us [(PCK(J)] was party. Mr. Thomas referred to paragraph 12 of the above judgment and submitted that construing documents similar to the ones relied on by the tenant in this case this court held that the question as to what is the nature of the possession enjoyed by the person in actual physical occupation, whether it is juristical possession or mere permissive possession, is a matter to be decided on the basis of the evidence which comes on record in a given case. Mr.Thomas also submitted that there is no evidence at all to support the findings of the RCR.158/06 3 Appellate Authority that the status of the revision petitioner is that of a subletting tenant and the status of M/s.New Jayadeep Agencies is that of a sub-tenant. Mr.Nias, per contra, would support the impugned judgment of the Appellate Authority by referring to the oral evidence adduced in the case. According to him, it is not necessary that objectionable subletting is established for ordering eviction under Section 11(4)(ii). It is sufficient that objectionable transfer is there in the present case. There is admission from the tenant that physical possession of the building is transferred to M/s.New Jayadeep Agencies. That being so, the judgment of the Appellate Authority is supportable. 3. We have very anxiously considered rival submissions addressed at the bar. Even though Mr.Nias is right in submitting that it is not necessary that a landlord- tenant relationship is established between the tenant and the alleged sub-tenant for ordering eviction under Section 11(4)(i) and it is sufficient that unauthorised transfer of premises is established, what we find from the judgment of the Appellate Authority is a finding that the revision petitioner/tenant is the sub-letting tenant and M/s.New Jayadeep Agencies person, RCR.158/06 4 who are found to be in physical possession is a sub-tenant. In order that a sub-tenancy is established, there should be evidence to hold that there is landlord-tenant relationship between the tenant and the alleged sub-tenant. But since the evidence falls short of holding so we are not inclined to vacate the finding that revision petitioner the tenant has sublet the building to M/s.New Jayadeep Agencies. 4. The above conclusion of ours does not mean that the revision petitioner is not liable to be evicted on the ground under Section 11(4)(i). The question whether M/s. New Jayadeep Agencies is an unauthorised transferee of possession, is relevant. The undisputed fact that M/s. New Jayadeep Agencies came into occupation without authorisation from the landlord is also relevant. Still the question whether M/s.New Jayadeep Agencies is possessing the building in the juristical sense has to be considered. Such a consideration has not been made by any of the statutory authorities. We are therefore inclined to relegate the issue to the Rent Control Appellate Authority. The Appellate Authority under the statutory scheme [See Section 18(3) of the Act, Rule 16(2) of the Statutory Rules and Section 23(1) of the Act] RCR.158/06 5 has got co-equal powers with the Rent Control Court in the matter of holding enquiry and receiving evidence. Hence we feel that the appeal can be remanded to the Appellate Authority affording opportunity to both sides to adduce further evidence. 5. At the same time we find considerable genuineness in the submission of Mr.Nias that the rent of Rs.250/- per mensem being paid by the revision petitioner for the petition schedule premises extending to about 400 Sq.ft. at a commercially vantage locality of Kozhikode City Corporation is ridiculously low. We are inclined to re-fix the rent payable by the revision petitioner for the building tentatively at Rs.7,500/- per mensem with effect from 1.9.2010. We make it clear that such re-fixation of rent is only tentative and those who are aggrieved by such fixation of rent can move Rent Control Court for fixation of fair rent. Till such time the Rent Control Court fixes a fair rent, the revision petitioner shall pay monthly rent at the rate of Rs.7,500/- per mensem. Result of the above discussion is as follows: The impugned order of the Rent Control Court and the impugned judgment of the Appellate Authority are set aside. RCR.158/06 6 RCA.No.156/2005 is remanded to the Rent Control Appellate Authority, Kozhikode. That authority is directed to permit both sides to adduce whatever further evidence they want to, and to decide the question as to what is the juristical status of M/s. New Jayadeep Agencies in the building in question, whether a person in possession or a mere licensee under the tenant? On the basis of the findings entered on the above question, revised judgment will be passed regarding liability of the revision petitioner to suffer order of eviction. Parties will enter appearance before the Rent Control Appellate Authority, Kozhikode on 2.9.2010. The Appellate Authority will expedite matters and make every endeavour to pass revised judgment within four months thereafter. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb