IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 RCRev..No. 382 of 2011() ------------------------ RCA.114/2003 of RENT CONTROL APPELLATE AUTHORITY THRISSUR RCP.14/2000 of RENT CONTROL COURT THRISSUR .................... : REVISION PETITIONER/APPELLANT/PETITIONER ------------------------------------------------------------ FRANCIS S MANAVALAN, S/O. SEBASTIAN, M.A. BALAKRISHNAN ROAD, COCHIN-18, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER KURIEN MANAVALAN. BY ADV. SRI.S.B.PREMACHANDRA PRABHU RESPONDENT(S)/RESPONDENTS/RESPONDENTS: --------------- 1. JALAJA RAVI, W/O. LATE RAVI, KUNNATHULLI HOUSE, AKAMALA DESOM,.P.O., KUMARANELLUR, WADAKKENCHERRY-680590. 2. NIGITHA, D/O. LATE RAVI, DO-DO- 3. NILITHA, D/O. LATE RAVI, DO-DO- ADV. SRI.P.GOPAKUMARAN NAIR FOR R1-3 SRI.C.S.DIAS FOR R1-3 SRI.N.K.SUBRAMANIAN FOR R1-3 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.HARILAL, JJ. ------------------------ R.C.R NO. 382 OF 2011 ------------------------ Dated this the 14th day of December, 2011 O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed by the landlord is the judgment of the Rent Control Appellate Authority confirming the order passed by the Rent Control Court declining eviction on the ground of sub letting which was invoked by the revision petitioner/landlord. 2. The tenant was one Mr.Ravi and upon his demise the tenancy devolved upon his legal heirs, the respondents herein. On the allegation that the tenants have parted with possession of the petition schedule building in favour of a stranger and that the arrangement between that stranger and the tenants is one of sub lease or objectionable transfer, the Rent Control Petition was filed after serving respondents with intimation notice under the proviso to Section 11(4)(i). The respondents denied the allegation of sub lease/objectionable transfer. 3. The Rent Control Court conducted enquiry and in the enquiry the evidence consisted of Exts. A1 and A2 and Exts.B1 RCR No. 382 /2011 2 to B8 and the oral evidence of PW1 and RW1. Significantly none of the respondents mounted the box to adduce counter evidence. RW1 was claimed to be a manager of the business which is being conducted in the petition schedule premises. The Rent Control Court on evaluating the evidence came to the conclusion that the landlord was unsuccessful in establishing the existence of eviction ground under Section 11(4)(i). Accordingly, the eviction sought for was declined. 4. The landlord carried the matter in appeal to the Rent Control Appellate Authority. The learned Appellate Authority made a reappraisal of the entire evidence and by the impugned judgment confirmed the decision of the Rent control Court and accordingly, dismissed the rent control appeal. 5. In this revision under Section 20, various grounds are raised assailing the concurrent decision taken by the Rent Control Court and the Appellate Authority declining eviction on the ground of sub letting. Sri.S.B.Premachandra Prabhu learned counsel for the revision petitioner addressed fervent submissions before us based on those grounds. Mr.Premachandra Prabhu submitted that it is true that the revision petitioner had not RCR No. 382 /2011 3 arrayed the alleged sub lessee as a party. The learned counsel referred to Section 21 of Act 2 of 1965 and submitted that it is not obligatory that the alleged sub lessee should be made a party. The circumstance that none of the tenants were prepared to mount the box for adducing counter evidence is significant, so submitted the learned counsel. RW1, who claims to be the manager and power of attorney holder, was not able to produce even a scrap of paper which will show that he is the manager. There was no counter evidence to the evidence adduced by PW1 that respondents are parted with possession. According to Mr.Premachandra Prabhu, the judgment of the Appellate Authority suffers from illegalities, irregularities and improprieties. 6. Sri.P.Gopakumaran Nair learned counsel for the respondents, per contra, would support the impugned judgment of the Appellate Authority. Mr.Gopakumaran Nair submitted that in the present case the revision petitioner was not able even to mention the name of the alleged sub lessee. According to the learned counsel, the ground under Section 11 (4) (i) is the only ground which is invoked . The only question, which comes up for decision before the statutory authorities, is whether the sub RCR No. 382 /2011 4 lease or transfer exists and if so whether the same is objectionable. In order that the above question is decided correctly, it is necessary that the alleged sub lessee is arrayed at least as a formal party. In order to enable the court to decide the issue in accordance with the principles of equity , justice and good conscious, it is necessary that the alleged sub lessee should be made at least as a formal party in the eviction petition under Section 11(4) (i). Mr.Gopakumar reminded us of the contours of our jurisdiction under Section 20 and submitted that in the present case, where reasonable findings have been entered concurrently by the Rent control Court and the Appellate Authority, this court will not be justified in upsetting those findings. In reply, Mr.Premachandra Prabhu sought for an order of remand, so that the revision petitioner can implead the alleged sub lessee . 7. Having given our anxious consideration to the rival submissions addressed at the Bar, we are of the view that there is no warrant for interfering with the judgment of the Appellate Authority, which under the statutory scheme is the final court on facts, within the contours of our jurisdiction under Section 20. RCR No. 382 /2011 5 On going through the impugned judgment, we find that the finding entered therein that the landlord was unable to prove the existence of objectionable transfer or sub lease is a finding founded on evidence available on record. True, the respondents/tenants did not mount the box for adducing oral evidence. But, then RW1 was not just the manager, he was the power of attorney holder also. Unlike the eviction ground where the bona fides is relevant, in the instant case where Section 11 (4) (i) is the only ground invoked, the power of attorney holder may be competent to adduce evidence on behalf of the tenants. According to us, the revision petitioner can go in for fresh action on all available grounds including the ground under Section 11 (4) (i) if the same is available. 8. But, we notice another aspect of the matter. The building is situated at Kokkalai within the limits of the Thrissur Corporation. The building is fetching paltry rent of Rs.150/- per month. There was some controversy at the Bar as to what is the contract rent of the petition schedule building. We are sure that if the building is let out today,the same will fetch at least Rs.1,500/- per month. We fix the rent payable for the petition RCR No. 382 /2011 6 schedule building tentatively at Rs. 1,000/- per month with effect from 1/1/2012. We make it clear that this fixation is tentative. If either party is aggrieved, it is open to them to move for regular fixation of fair rent under Section 5. Till fair rent is fixed, the tenants shall pay to the landlord the rent at the rate of Rs. 1,000/- per month. 9. The result of the above discussion is as follows; i). The order declining eviction under Section 11 (4) (i) is confirmed. ii) The petitioner is permitted to go in for fresh proceedings invoking all available grounds including the ground under Section 11 (4) (i) if the same is available. iii). The rent payable by the respondents/tenants is fixed at Rs.1000/- per month. PIUS C.KURIAKOSE,JUDGE K.HARILAL, JUDGE. dpk RCR No. 382 /2011 7