IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 RCRev..No. 374 of 2010() ------------------------ RCA.12/2010 of RENT CONTROL APPELLATE AUTHORITY KOZHIKODE RCP.87/2003 of PRL.M.C.KOZHIKODE-I .................... REVISION PETITIONER(S): APPELLANT/1ST RESPONDENT-TENANT ----------------------------- VAYALIAKATH ABDUL NAZER,S/O.HAIDARALY, R/AT ITTIYAT,PANTHEERANKAVU VILLAGE,KODEL DESOM, KOZHIKODE TALUK,REP. BY P/A V. AHAMMED SAKKEER, S/O. HYDERALI, RESIDING AT NASAMU HOUSE, ARAPUZHA, PANTHEERANKAVE AMSOM, KODAL DESOM, KOZHIKODE TALUK AND DISTRICT. BY ADV. SRI.K.M.JAMALUDHEEN RESPONDENT(S): RESPONDENTS/PETITIONER-LANDLORD & 2ND RESPONDENT -------------------------- 1. KANHIRANGATT SEETHI, AGED 61 YEARS, S/O. KUNHIKOYA, RESIDING AT RAHMATH MANZIL, REP. BY P/A HOLDER DR.K.R. MANZOOR ALI, AGED 37, S/O. SEETHI, RAHAMATH MANZIL, PANTHEERANKAVU VILLAGE, KODAL DESOM, KOZHIKODE TALUK AND DISTRICT. 2. T. ABDUL NAZAR, AGED 40 YEARS, S/O. KUNHATHEYIL, RESIDING AT THOTTATHIL HOUSE, OLAVANNA AMSOM DESOM, KOZHIKODE TALUK - 673 025. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08/12/2010, ALONG WITH RCR NO. 389 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ RCR .Nos. 374 & 389 OF 2010 ------------------------ Dated this the 8th day of December, 2010 O R D E R Pius C.Kuriakose, J. The tenant is the revision petitioner in RCR No.374/2010 and the alleged sub tenant is the revision petitioner in RCR No.389/2010. Under challenge in both these revisions is the judgment of the rent control appellate authority confirming the order of eviction passed by the rent control court on the ground under section 11(4)(i) of Act 2 of 1965. The impugned judgment is passed by the rent control appellate authority pursuant to an order of remand passed by this court in RCR No.347/2007. Under that order, this court had concluded that the tenant, the first respondent in the RCP, is employed abroad since 11 years and that it is the alleged sub tenant who is in actual physical possession of the building and is actually carrying on business. The order of remand was passed for the purpose of enabling the revision petitioners to adduce evidence and prove their contention that their jural relationship is that of RCR.Nos.374/2010 & another 2 employer and employee and not that of tenant and sub tenant or tenant or unauthorised transferee. This court had fixed appearance date as 29/9/2009. On that day, the tenant entered appearance through counsel and sought time. It appears that the case was adjourned on one or two occasions for enquiry and finally the impugned judgment has been passed on 7/11/2011 after the case was finally heard on 30th October 2009. 2. The argument which was addressed before us by Sri.K.M.Jamaludheen, learned counsel for the tenant was that the learned appellate authority did not afford sufficient opportunity to the tenant to adduce evidence. According to the learned counsel, the very purpose of the remand order was ignored by the learned appellate authority. The purpose was to enable the tenant to examine the alleged sub tenant. But, the alleged sub tenant had, in the meanwhile, gone abroad and the appellate authority was bound to wait till the alleged sub tenant came back. There is no compliance with the terms of the remand order and for that reason itself the impugned judgment is liable to be interfered with. 3. Sri.Koshy George, learned counsel for the revision RCR.Nos.374/2010 & another 3 petitioner in RCR No. 389/2010 also would assail the impugned judgment. We enquired of the learned counsel as to how the sub tenant could maintain this revision petition, as he had not preferred any appeal against the order of eviction passed by the rent control court, Mr.Koshy's answer was that it is out of conscience prick only that the alleged sub tenant has filed the revision petition. The alleged sub tenant was accommodated for a short period of two months as a cutting expert in the tailoring shop of the tenant and it is very painful for the alleged sub tenant to notice that the tenant has entailed liability to be evicted because of that. 4. We have considered the submissions addressed by both Mr.Jamaludheen and Mr.Koshy George. We have gone through the judgment of the learned appellate authority and the order of the rent control court, which was confirmed by the appellate authority. We have also gone through the order of this court in RCR No.347/2007. 5. We shall first deal with RCR No. 389/2010 filed by the alleged sub tenant. It is very clear to our mind that this revision petition is not maintainable in law. The order of eviction, RCR.Nos.374/2010 & another 4 which was passed by the rent control court against the alleged sub tenant, has attained finality as he did not challenge the same by filing regular appeal. We are not at all impressed by the theory of conscience prick advanced by Mr.Koshy George. We hold that RCR No. 389/2010 is not maintainable and reject the same. 6. Coming to RCR No.374/2010, the question which arises for decision is that the judgment of the appellate authority warrants interference within the contours of Section 20 of Act 2 of 1965. As already stated, it is pursuant to the remand order passed by this court in RCR No.347/2007 that the impugned judgment was passed. We do not find any merit in the submission of Mr.Jamaludheen that the impugned judgment has been passed in violation of the remand order passed by this Court. The remand order was certainly passed for giving opportunity to the tenant to substantiate his contention that the jural relationship between him and the alleged sub tenant is that of employer and employee. It is not disputed that at least one or two opportunities were granted by the learned appellate authority. It is evident that such opportunities were not availed RCR.Nos.374/2010 & another 5 by the tenant. In short, we are of the view that the finding entered by the learned appellate authority that the jural relationship between the revision petitioner is that of either tenant and sub tenant or tenant and unauthorised transferee is a finding founded on evidence available on record( the evidence which was available even at the time when the remand order was passed). Neither the landlord nor the appellate authority are to be blamed for the tenant and the alleged sub tenant having not adduced evidence despite opportunities given. 7. The revision petitions are liable to fail and will stand dismissed. However, considering the fervent appeal of the learned counsel for the revision petitioners, though it was submitted before us that both the tenant and the alleged sub tenant are abroad, we are inclined to grant six months time from today subject to certain conditions. 8. The result is therefore as follows; 9. The Revision Petitions are dismissed. The Execution Court is directed to keep in abeyance proceedings for delivery subject to the following conditions; The revision petitioners directly or through authorised RCR.Nos.374/2010 & another 6 representatives will file affidavit before the Execution Court within three weeks from today undertaking as follows; a). that the landlords will be put in possession of the petition schedule building within six months from today. b). that the occupational charges at the rate of Rs.1000/- per month will be paid with effect from 1/1/2011 till the date of actual surrender. We make it clear that the revision petitioners will get benefit of time granted above only if affidavit is filed on time and undertakings therein are honoured. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk