IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 6TH JUNE 2011 / 16TH JYAISHTA 1933 RCRev..No. 336 of 2010() ------------------------ RCA.67/2008 of II ADDL.RENT CONTROL APPELLATE AUTHORITY/ II ADDL.DISTRICT COURT, KOZHIKODE RCP.90/2006 of ADDL.MUNSIFF/RENT CONTROLLER II,KOZHIKODE .................... REVISION PETITIONERS/RESPONDENTS IN RCA/RESPONDENT RCP: ------------------------------------------------------------------------------------------------------ 1. THE SECRETARY, THE INDIAN UNION MUSLIM LEAGUE, MANKAVU TOWN OFFICE,PO.MANKAVU,KOZHIKODE-7. 2. KUNDATHUR ASSAN KOYA, S/O.KOYATTY HAJI, AGED 55 YEARS, KULANGARA PO, MANKAVU, KOZHIKODE-7. BY ADVS. SRI.K.M.FIROZ, SMT.M.SHAJNA. RESPONDENT(S): APPELLANT IN RCA/PETITIONER IN RCP: ----------------------------------------------------------------------------------------- PALLIYEDATH SARA, W/O.BEERAN, AGED 50 YEARS,VALAPPIL HOUSE, YATHEENKANA ROAD, PO.POKKUNNU, KOZHIKODE-673 013. BY ADVS. SRI.NAGARAJ NARAYANAN, SRI.SAIJO HASSAN, SRI.RAJAN VELLOTH, SRI.PRATHAP PILLAI, SRI.BENOJ C AUGUSTIN, SRI.SEBIN THOMAS. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON I.A.NO.2720/2010 IN RCR NO.336/2010 DISMISSED 6/06/2011 SD/- PIUS C. KURIAKOSE, JUDGE SD/- N.K.BALAKRISHNAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- R.C.R.No.336 of 2010 ---------------------------------------------------- Dated this the 6th day of June, 2011 Order Balakrishnan, J. The tenant and the alleged sub-tenant have come up in revision challenging the judgment of the learned Rent Control Appellate Authority ordering eviction under Section 11(4)(i) of Act 2 of 1965. The landlady filed petition for eviction under Sections 11(2)(b) and 11(3) of the Act. The Rent Control Court and the Appellate Authority rejected the claim under Section 11 (3) of the Act. With regard to the order of eviction under Section 11(2)(b), no challenge is made since the revision petitioners would be resorting to Section 11(2)(c) of the Act. 2. The case of the landlady is that the petition schedule building was let out to Assan Koya, second revision petitioner for his own purpose, but, he sub-leased the petition schedule building to the first revision petitioner, the Indian Union Muslim League, Mankavu Town Office without the consent or knowledge of the landlady and that the sub-tenant is in exclusive possession RCR 336/10 2 of the petition schedule building. 3. Admittedly, Ext.A1 lease deed dated 27.9.1980 was executed in favour of Assan Koya in his individual capacity. Though it was contended that Assan Koya was then the Secretary of the I.U.M.L. Mankavu Town Committee, no evidence whatsoever was adduced to prove that fact nor is there any averment in Ext.A1 to the effect that the building was leased out to Assan Koya to use it as the League office. Similarly, though it was contended that the rent in respect of the petition schedule building was paid by the League office, the account book or other documents pertaining to the same were not produced. Therefore, the learned Appellate Authority was not inclined to accept the case of the revision petitioners that though the lease deed was executed in the name of Assan Koya, the lease was in fact taken for accommodating the League office. 4. Mr.K.M.Firoz, learned counsel for the revision petitioners made strenuous arguments projecting the grounds raised in the revision petition and contended that the court below should have given much weight to Ext.B1 letter dated 19.6.1998 as per which the landlady was stated to have demanded the League office to RCR 336/10 3 pay rent at the rate of Rs.10/- per day. The landlady was not examined. Her son who was examined as P.W.1 has stated that such a letter was not brought to the notice of himself or his mother. Even if it is accepted that Ext.B1 letter was sent by the landlady, that will not prove the case of the revision petitioners that there was express consent on the part of the landlady to sub-lease the building to the League office. The plea of acquiescence putforward by the revision petitioners could not be substantiated. Learned counsel for the respondent-landlady would point out that even Ext.B2 series rent receipts were issued even after the date of Ext.B1 in the name of Assan Koya only. Ext.B2 series of which the last one is dated 10.11.2003 would prove that Assan Koya alone was the tenant of the petition schedule building. Since Assan Koya was proved to be the tenant of the petition schedule building and since the League office is in exclusive possession of the petition schedule building, the burden is on the tenant to prove the jural relationship between him and the sub-tenant. In view of the above admitted fact, there can be no difficulty to prove that there was objectionable subletting and that the League office (first revision petitioner) was in exclusive RCR 336/10 4 possession of the petition schedule building. Hence, the finding entered by the learned Appellate Authority that there was objectionable subletting or transfer of exclusive possession is well merited. 5. It was contended by the revision petitioners that there was no proper notice as required under the proviso to Section 11 (4)(i) of the Act. What is required under the proviso is to send a registered notice to the tenant intimating the contravention of the condition of lease and the tenant should fail to terminate the transfer or sub-lease within 30 days of the receipt of the notice or the refusal thereof. The argument advanced by the learned counsel for the revision petitioners is that admittedly the notice was not served on the tenant and as such the condition mentioned in the proviso is not complied with. We cannot accede to that submission. Notice was sent by registered post in the address of the tenant Assan Koya. There is no dispute regarding the fact that the residential address of the tenant shown in Exts.A2 and A3 is correct. Ext.A3 was returned with the endorsement, 'the addressee is out of India'. It would be practically impossible for the landlady to get the correct address RCR 336/10 5 of the tenant who is abroad to cause the notice to be served on the tenant. There was compliance of sending of the notice by registered post in the address which was shown in the rent deed and which was shown in the rent receipts. Therefore, the contention to the contrary canvassed by the revision petitioners must also fall to the ground. We find no illegality, irregularity or impropriety in the findings rendered by the learned Appellate Authority. Therefore, the revision fails and the same is dismissed. 6. Learned counsel for the petitioners requested that at least one year time may be granted to the revision petitioners to surrender the possession of the petition schedule building. Such a long period cannot be granted. However, we are inclined to grant nine months time to the tenant to vacant the building subject to the following conditions: The revision petitioners shall file an affidavit within one month from today before the execution court or the Rent Control Court, as the case may be, undertaking to surrender the building peacefully to the landlord within 9 months from today and undertaking further that arrears of rent, if any, due as on date will be discharged within one month and further that with effect RCR 336/10 6 from 1.7.2011 till the date of actual surrender the petitioners would pay Rs.300/- per month as occupation charges to the landlord. We make it clear that the petitioners will get the benefit of time granted as above only if they file the affidavit on time and honours the undertakings therein. PIUS C.KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. srd RCR 336/10 7 RCR 336/10 8