IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 RCRev..No.14 of 2010 (E) ----------------------------- RCA.40/2008 of ADDL.D.C., ALAPPUZHA. RCP.25/2006 of PRL.MUNSIFF COURT, CHERTHALA .................... PETITIONER/2ND RESPONDENT/2ND COUNTER PETITIONER ------------------------------------------------------------------- SREEDEVI MALLAN, W/O.VAMANA MALLAN PROPRIETRIX,LALITHA PRASAD AUTO PARTS & REVATHI METAL AGENCIES, NEAR ST.MARY'S GIRLS HIGH SCHOOL JUNCTION,CHERTHALA, RESIDING AT KUNDELATHU HOUSE CHERTHALA TALUK,NORTH MURI, CHERTHALA NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.P.S.KRISHNA PILLAI RESPONDENT(S)/APPELLANT & 1ST RESPONDENT/PETITIONER AND 1ST COUNTER PETITIONER: -------------------------------------------------------------------------------- 1. KORA JOSEPH,S/O. KORA,RESIDING AT EDAVAZHIKKAL HOUSE,CHERTHALA NORTH MURI,CHERTHALA NORTH VILLAGE. CHERTHALA TALUK,ALAPPUZHA DISTRICT. 2. N.PURUSHOTHAMAN NAIR,SREEDEVI SADANAM CHERTHALA SOUTH MURI, CHART ALLA SOUTH VILLAGE, CHERTHALA TALUK,ALAPPUZHA DISTRICT. ADV. SRI.T.JAYAKRISHNAN FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ R. C. R. No.14 of 2010 ------------------------------------------------ Dated this the 29th day of June, 2010 ORDER Pius C. Kuriakose, J The alleged sub tenant is in revision challenging the judgment of the Appellate Authority ordering eviction on the ground of subletting under Section 11(4)(i). The landlord's case was that the tenancy is governed by Ext.A1 rent chit under which the landlord's father was the landlord and Sri.Purushothaman Nair, the second respondent herein was the tenant. The allegation is that at about December 2002, Sri.Purushothaman Nair transferred possession of the building unauthorisedly in favour of the present revision petitioner. A notice was sent by the landlord R. C. R. No.14 of 2010 -2- intimating Sri.Purushothaman Nair as well as the revision petitioner of the contravention of the lease and to that notice there was no response either from Sri.Purushothaman Nair or from the present revision petitioner. The tenant and the revision petitioner filed separate statement of objections to the RCP. Sri.Purushothaman Nair, the tenant would contend that he continued in possession as a tenant only till 2002 and that he surrendered the premises back to the landlord, thereby tacitly contending that he has nothing to do with the building after 2002 and that if at all the alleged sub lessee is in possession, she has been put in possession by the landlord himself. Though such a counter statement was filed by Purushothaman Nair, he did not pursue the contention therein and he remained ex parte at R. C. R. No.14 of 2010 -3- trial. 2. The revision petitioner, the alleged sub lessee did admit the original lease governed by Ext.A1. But what was contended was that in the year 1993 Sri.Purushothaman Nair transferred possession of the building to her with the consent and knowledge of the landlord and that ever since thereafter, to the knowledge of the landlord and members of the landlord's family she has been conducting business in hardware items in the petition schedule building. At enquiry by the Rent Control Court no oral evidence was adduced by the landlord. Exts.A1 to A4(a) documents were produced apart from examining as PW1, the Advocate who submitted Ext.C1 report. Ext.C1 report was to the effect that at the time of Commissioner's visit, the building in question was R. C. R. No.14 of 2010 -4- found to be occupied not by Purushothaman Nair the tenant, but by the alleged sub lessee's husband. It was also reported that the same business is being conducted in the petition schedule building as well as in the adjacent room which admittedly stands on a rental arrangement between the landlord and the sub lessee's husband. On the side of the alleged sub lessee documents Exts.B1 to B16 were marked and the husband of the alleged sub tenant was examined as RW1. 3. The Rent Control Court on evaluating the evidence took the view that it was the landlord's burden to prove that transfer of possession by Purushothaman Nair in favour of the alleged sub lessee was without the landlord's consent and that the above burden which was heavier in the light of R. C. R. No.14 of 2010 -5- Exts.B1 to B16 showing the transfer of possession if at all has taken place, long prior to December, 2002, the period mentioned in the RCP and that the above burden has not been discharged by the landlord. In short, the Rent Control Court took the view that the non-examination of the landlord as a witness for offering explanation as to how Exts.B1 to B16 came into existence is fatal. In that view of the matter the Rent Control Court declined passing order of eviction on the ground of subletting. 4. As a matter of fact ground of arrears of rent under Section 11(2)(b) was also invoked in the RCP and that ground was in fact upheld by the Rent Control Court which passed order of eviction under Section 11(2)(b) in favour of the landlord. 5. The Rent Control Appellate Authority R. C. R. No.14 of 2010 -6- considered an appeal preferred by the landlord and passed the impugned judgment ordering eviction on the ground of subletting also. According to the Appellate Authority when the original tenancy is admitted to be governed by Ext.A1 and Ext.A1 does not empower the tenant to sublet or transfer the premises and when the contention of the alleged sub lessee is that he came into possession of the building with the consent of the landlord it was the contesting sub lessee's burden to prove by adducing quality evidence that he came into possession with the consent of the landlord. That burden according to the Appellate Authority has not been discharged by the oral and documentary evidence adduced by the alleged sub lessee. Ext.B1 rent receipt book was found to be not pertaining to the petition R. C. R. No.14 of 2010 -7- schedule building. Ext.B1 rent receipt book relied on by the sub lessee to prove his case of consent and acquiescence was not accepted by the Appellate Authority. The other documents in the view of the Appellate Authority can at the most show that the sub lease had taken place much earlier than the point of time made mention of in the RCP. In that view of the matter, the Appellate Authority reversed the decision of the Rent Control Court and ordered eviction on the ground of subletting. 6. In this revision under Section 20 various grounds have been raised assailing the judgment of the Appellate Authority. Dr. P.S.Krishna Pillai the learned counsel for the revision petitioner drew our attention to Ext.B1. According to him Ext.B1 contains signatures of the landlord and R. C. R. No.14 of 2010 -8- other members of the landlord's family. In the face of Ext.B1, it was obligatory that the landlord mounted the box and offered some explanation as to why the landlord received rent from the alleged sub lessee. If it is landlord's case that Ext.B1 does not pertain to the building in question then also the landlord had the obligation to offer such an explanation from the witness box so that the veracity of the explanation could be tested by cross examination. Dr.Krishna Pillai also drew our attention to Exts.B2 to B16 and submitted that the cumulative effect of these documents is that the landlord's case that the revision petitioner was inducted in 2002 December only is false. According to him, there was no warrant at all for the Appellate Authority to have interfered with the order of the Rent Control Court. Answering a R. C. R. No.14 of 2010 -9- query put by us, he submitted that there will not be any difficulty for the revision petitioner to adduce evidence by examining Antony or Varghese, the two persons referred to by the subtenant as persons present at the time when consent was given by the landlord. 7. Resisting the submission of Dr.Krishna Pillai Sri.Jayakrishnan the learned counsel for the landlord submitted that Ext.B1 note book does not pertain to the petition schedule building. On the contrary the entries in that note book pertains to payment and receipt of rent in respect of the adjacent room where RW1 himself is conducting the business. He pointed out that RW1's oral evidence is to the effect that the businesses in the two rooms including the rice business is being actually conducted by RW1 only. According to R. C. R. No.14 of 2010 -10- Mr.Jayakrishnan the important question to be answered is whether there was consent on the part of the landlord to the arrangement under which Sri.Purushothaman Nair, the original tenant put the revision petitioner in possession of the building. On the evidence presently on record the question can be answered only in favour of the landlord. Answering a query put by us Sri.Jayakrishnan also submitted that if it becomes necessary there will not be any difficulty for the landlord to mount the box and offer explanation regarding Ext.B1 and also regarding the various other documents produced by the alleged sub lessee. 8. In fact one of the arguments highlighted before us by Mr.Jayakrishnan to show that the version of the landlord is more probable was that R. C. R. No.14 of 2010 -11- the revision petitioner who had set up a direct tenancy in respect of the building in question had not chosen even to tender the rent despite statutory notice under Section 11(2)(b). According to Mr.Jayakrishnan, the rent of Rs.75/- fixed as per Ext.A1 is ridiculously low considering the commercial importance of the locality where the building is situated. 9. We have very anxiously considered the rival submissions addressed at the Bar. We are in agreement with the view of the Rent Control Appellate Authority that in a case where the alleged sub lessee raises a contention that the sublease or transfer is with the consent of the landlord, the burden will be that of the alleged sub lessee to substantiate that contention. But as we scan the pleadings in this case, we find that there R. C. R. No.14 of 2010 -12- is a further contention (though not in so many words) that the sub lease or transfer has been acquiesced at by the landlord and by the members of the original landlord's family. It is also to be noticed that the definite plea of the landlord was that till the end of December 2002 the original tenant Purushothaman Nair retained possession of the building and that it was thereafter that the building was transferred to the revision petitioner. Against this case there was definite plea form the side of the revision petitioner that she had come into possession way back in 1993 itself. We notice that the revision petitioner was able to produce a few documents which will strongly indicate that she came into possession of the building during 1993-94. We also notice that no specific question is asked in cross examination challenging the R. C. R. No.14 of 2010 -13- version of RW1 that at least a few signature in Ext.B1 book are that of the present landlord. According to us in the nature of the peculiar pleadings raised in this case and in the light of the documentary evidence come on record the landlord had burden to adduce at least rebuttal oral evidence. In fact before us both sides submitted that there will not be any difficulty to examine one Varghese and another one Antony who according to the revision petitioner were witnesses to the consent given by the landlord to the original tenant for possession in favour of the revision petitioner. We also notice that before us the stand was that the landlord will be prepared to mount the witness box if it becomes necessary. We are therefore, of the view that the question whether the transfer of the building by R. C. R. No.14 of 2010 -14- Purushothaman Nair in favour of the revision petitioner is with the consent of the original landlord or whether the above transfer has been acquiesced at by the original landlord or the present landlord should be re-examined by the Rent Control Court. 10. We find considerable merit in the submission of the learned counsel for the landlord that the rent of Rs.75/- per month presently fixed is low. Taking into account the importance of the locality and all other relevant matters for fixing the rent of a commercial building, the revision petitioner has to pay a monthly payment of Rs.600/- with effect from 1st August, 2010 at least till such time as he continues in possession of the building. The result of the above discussion is therefore, as follows:- R. C. R. No.14 of 2010 -15- The order of the Rent Control Court and the judgment of the Appellate Authority is set aside to the extent they pertain the ground under Section 11(4)(i). The RCP is remanded to the Rent Control Court. That court is directed to allow both sides to adduce whatever further evidence they want to. That court will take a fresh decision on the landlord's ground for eviction under Section 11(4) (i) specifically addressing the question as to whether the transfer of the building by Purushothaman Nair in favour of the revision petitioner is with the consent of the original landlord and the further question whether either the original landlord or the present landlord acquiesced at such transfer in any manner which R. C. R. No.14 of 2010 -16- so ever. Fresh order will be passed by the Rent Control Court at the earliest and at any rate within four months of the parties appearing before the court below pursuant to the remand. The amount payable every month by the revision petitioner as occupational charges for the building with effect from 01/08/2010 is at Rs.600/-. If ultimately it is found by the court that the revision petitioner has acquired the status of a tenant, it is open to the revision petitioner if she is aggrieved by the above fixation to move the Rent Control Court with appropriate application. There will be a corresponding right for the landlord also. Parties will appear before the Rent Control Court on 19/07/2010. Transmit the lower court records R. C. R. No.14 of 2010 -17- forthwith to the Rent Control Court, Cherthala. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns & pmn/-