IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 RCRev..No. 336 of 2007() ------------------------ RCA.41/2004 OF RENT CONTROL APPELLATE AUTHORITY, ALAPPUZHA RCP.7/2000 OF RENT CONTROL COURT, CHERTHALA .................... REVISION PETITIONER/2ND RESPONDENT/ADDL. 2ND PETITIONER ------------------------------------------------------------------------------------------------------ LEELA J.PILLAI @ LEELA KUMARI, D/O.AMMUKUTTY AMMA, KOCHULEELANGALI, FROM KOLLELIL, VAYALAR MURI, VAYALAR EAST, CHERTHALA. BY ADV. SRI.R.SUDHIR RESPONDENT(S): APPELLANT/RESPONDENT ---------------------------------------------------------------- BHASKARA MENON, VIJAYA VIHARIL, NALLAPARAMBATHU, UZHUVA MURI, PATTANAKKAD VILLAGE, CHERTHALA. ADV. SRI.MILLU DANDAPANI FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 27/01/2011, THE COURT ON 21/01/2011 PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------------------------------------ RCR. No. 336 of 2007 ----------------------------------------------- Dated this the 21st day of January, 2011 J U D G M E N T BALAKRISHNAN, J. Landlord is the revision petitioner. The only ground which survives for consideration, is whether the respondent-tenant sublet a portion of the petition schedule building to any person. It was contended by the landlord that the southern portion which is described as lean-to was sublet by the tenant to one Vazhathoppil Radhakrishnan and that he is in exclusive possession of the same. The tenant resisted the claim contending that the lean-to was not sublet to Radhakrishnan or to anybody else and that the lean-to portion is occupied by his own watchman for his stay. 2. Before the Rent Control Court PW-1 to PW-3 were examined originally and the tenant was examined as RW-1. The learned Rent Controller allowed the petition on the RCR.336/07 -2- ground that the tenant sublet a portion of the petition schedule building to one Radhakrishnan. It was taken up in appeal by the tenant. The learned Appellate Authority found that Ext.C-1 report submitted by the commissioner was not proved by examining the commissioner since it was an ex parte commission. Hence the case was remanded to the Rent Control Court. After remand the Advocate Commissioner was examined as PW-4. Both parties were given opportunity to adduce further evidence. Again the Rent Control Court found that the lean-to portion of the petition schedule building was sublet by the tenant to Radhakrishnan and it was in the exclusive possession of that Radhakrishnan and hence order of eviction was passed again under Section 11(4)(i) of the Act. The tenant again preferred appeal before the Appellate Authority. The learned Appellate Authority again found that Ext.C-1 report submitted by the Advocate Commissioner cannot be relied RCR.336/07 -3- upon since it was prepared without issuing notice to the tenant. It was also found by the learned Appellate Authority that the evidence given by PW-2 and PW-3 is shrouded in suspicion. Though the Advocate Commissioner was examined as PW-4 the learned Appellate Authority was not prepared to accept the report, Ext.C-1. It was further found that the landlord has to be non-suited for the reason that he did not produce the rent deed. It was observed that an adverse inference has to be drawn against the landlord for non-production of that document. Hence the order of eviction was reversed by the learned Appellate Authority. The revision petitioner vehemently argued that the learned Appellate Authority has gone wrong in not placing reliance on the observations of the commissioner in Ext. C-1. Further, the learned Appellate Authority has not considered the fact that the Advocate Commissioner has clearly reported that the lean-to was under separate lock RCR.336/07 -4- and key and was separated by a wall and was in the exclusive possession of the person to whom that portion was sublet. 3. The short point for consideration is whether the landlord has established that the tenant has sublet or transferred exclusive possession of the lean-to to Radhakrishnan or to any other person without the consent of the landlord. It is important to note that before the Rent Control Court a commission was taken out by the landlord to inspect the petition schedule premises and to report whether that lean-to was separately held and possessed by any person. It was noted by the Advocate Commissioner that there were so many articles fitted and also kept in the said premises which have nothing to do with the chitty business conducted by the tenant in the petition schedule building. The further fact that the lean-to was locked from outside and that portion was having direct access from the RCR.336/07 -5- remaining portion of the petition schedule building was omitted to be taken note of by the learned Appellate Authority. The Advocate Commissioner who was examined as PW-4 noted new plastering on the eastern side of the lean-to and that a separate door was fitted on the southern wall of the lean-to in such a manner that a person can enter into the lean-to through the door on the eastern wall of the room on the southern side of the petition schedule premises and that door to the lean-to can be locked from outside. That portion was separated from the main building occupied by the tenant. It would give a clear picture that the lean-to was separately held by another person and not by the tenant. The very fact that that lean-to was not kept open to be available for inspection by the Advocate Commissioner would sufficiently indicate that at that point of time it was not in the direct possession of the tenant. There was no difficulty for the tenant to open the lean-to RCR.336/07 -6- portion had he been in possession of the key of that portion. The observation made by the Advocate Commissioner in his report and in respect of which evidence was let in by him would make it manifest that the lean-to was sublet by the tenant to another person. 4. It was argued on behalf of the tenant that the non- impleadment of Radhakrishnan is fatal to the claim made by the landlord. That contention was stoutly resisted by the learned counsel for the landlord. It was pointed out that a notice was sent to Radhakrishnan. It was received by him, but no reply was sent. Non-impleadment of subtenant is not fatal to the rent control petition. Section 21 of the Act makes it clear that the subtenant is not required to be impleaded as the order of eviction passed against the tenant is binding on the subtenant also. Even though the landlord was not in a position to know the name and address of the subtenant there is clear, cogent and convincing evidence RCR.336/07 -7- to show that the tenant has parted with possession or has sublet part of the building; lean-to and that will be sufficient to entitle the landlord to get eviction under section 11(4)(i). 5. The contention that was raised by the tenant was that the lean-to portion was not sublet to Radhakrishnan but was occupied by his own watchman for his stay. It is curious to note that the so-called watchman who was stated to have been allowed to stay there was not examined by the tenant. The landlord cannot be blamed for that purpose since it was not within his knowledge as to who that alleged watchman is. Once it is proved that the portion of the tenanted premises was already put in the possession of another person then it is for the tenant to prove the jural relationship between him and the other person. It is within his exclusive knowledge. The terms and conditions under which the other person was put in possession of the portion RCR.336/07 -8- of the tenanted premises is best known to the tenant and not to the landlord and as such the non-examination of the watchman who according to the tenant was allowed to occupy that portion would actually demolish the case of the tenant that it was only allowed to be occupied by his watchman. From what has been stated earlier it is clear that lean-to was sublet by the tenant to Radhakrishnan. 6. The ground which was projected by the learned Appellate Authority to decline the relief under section 11(4) (1) was that the landlord has failed to produce the rent deed. It was pointed out that the landlord when examined as PW-1 has stated that the rent deed is available with him. Since it was not produced the learned Appellate Authority observed that an adverse inference has to be drawn against the landlord. But it is pertinent to note that the tenant had no case that the rent deed authorises him to sublease or to transfer possession of the tenanted building. Since no such RCR.336/07 -9- case was advanced by the tenant it cannot be said that non- production of the rent deed would in any way militate against the claim made by the landlord. As such the reason given by the learned Appellate Authority to dis-entitle the landlord from getting eviction under section 11(4)(1) does not appeal to us. On a reappraisal of the entire evidence we are of the firm view that the landlord has succeeded in establishing his case that the lean-to portion which is part of the petition schedule building was sublet by him without the consent of the landlord. The notice as required under Section 11(4)(i) was duly sent. As such the landlord is entitled to get an order of eviction under section 11(4)(i), which was unjustly declined by the learned Appellate Authority. In the result the revision petition is allowed and order of eviction passed by the learned Rent Controller is restored. However, we feel that there is some justification in this RCR.336/07 -10- case for granting reasonable time to the respondent/tenant for vacating the premises. As rightly submitted by the learned counsel for the respondent, this is a case where the respondent sub let only a portion of the building and is even now retaining substantial portion of the building. Hence, we are inclined to grant to the respondent 9 months time from today i.e. till 30/11/2011 for surrendering the premises subject to the conditions. Hence, the Execution Court is directed to keep in abeyance proceedings for delivery till 31/1/2011 subject to the following conditions; i). The respondent shall file an affidavit before the Execution Court on or before 7/2/2011 undertaking to put the landlord back in possession of the entire building including the portion now sub let on or before 31/11/2011 and undertaking further through the same affidavit that arrears of rent due as on date will be paid before 28/2/2011 and occupation charges at the current rent rate RCR.336/07 -11- of Rs.100/- with effect from 1-2-2011 without fail on the first of every month till actual surrender is made. We clarify that the respondent/tenant will get the benefits of time allowed as above only if affidavit as directed above is filed and the undertakings therein are complied with. (PIUS C.KURIAKOSE, JUDGE) (N.K.BALAKRISHNAN, JUDGE) ksv/-