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 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 RCRev..No. 44 of 2007(A) & C.O.104 OF 2010 --------------------------------- RCA.20/2002 of ADDL.DISTRICT COURT (ADHOC)-II, THALASSERY RCP.35/2000 of PRL.M.C./RENT CONTROLLER,KANNUR .................... REVISION PETITIONER/APPELLANTS/RESPONDENTS -------------------------------------------------------------- 1. THOLICHI HASHIM, S/O.K.HAMZA, AZHIKODE AMSOM DESOM, KANNUR-9, PORT ROAD, NEAR POTHUMKADAVU, (BY POWER OF ATTORNEY HOLDER THOLICHI HARISH @ BABU RCR PETITIONER NO.2). 2. THOLICHI HARISH @ BABU, S/O.K.HAMZA, AZHIKODE AMSOM DESOM, KANNUR-9, BUILDING NO. AP VII-79 & 80. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. SMT.SANJANA R.NAIR RESPONDENT(S)/RESPONDENT/PETITIONER ------------------------------------------------- CHULIYILE PEEDIKAYIL BEEFATHU, D/O.MAMMEDKUNHI, AZHIKODE AMSOM DESOM, KANNUR-9. [DIED; Lrs IMPLEADED] * SUPPLEMENTAL RESPONDENTS 2. C.P. ISHAK, C.P. HOUSE, NEAR AKLIYATH L.P. SCHOOL, VANKULATH VAYAL, AZHIKODE P.O., KANNUR - 679009. 3. KHALIL, DO. DO. RCR.44/2007 -2- 4. HANEEFA, DO. DO. 5. MASHOOD, D0. DO. 6. SAJID, DO. DO. (SUPPLEMENTAL RESPONDENTS 2 TO 6 ARE IMPLEADED AS THE LRs OF THE DECEASED RESPONDENT AS PER ORDER DATED 06/12/10 ON I.A. NO.2117 OF 2008 IN RCR.44/07). ADV. SRI.N.NAGARESH SRI.K.BABU SRI.N.NAGARESH FOR ADDL.R2 TO 5 SRI.K.BABU FOR ADDL.R2 TO 5 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21/02/2011, ALONG WITH CO NO.104 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. No.44 of 2007 & C. O. No.104 of 2010 ------------------------------------------------ Dated this the 21st day of February, 2011 ORDER Balakrishnan, J This revision is filed by the tenants who suffered an order of eviction passed concurrently under Section 11(4)(i) i.e. on the ground of sub lease. The Cross Objection is filed by the landlady challenging the judgment of the learned Appellate Authority to the extent it reversed the order of eviction passed under Section 11(3) of the Act. 2. Shorn of details, the case of the landlady is that the petition schedule building was let out to the first respondent in the RCP for conducting business. The first respondent sublet the petition schedule building to his brother, the second respondent without the consent of the landlady. The business in the petition schedule building is exclusively R. C. R. No.44 of 2007 & C. O. No.104 of 2010 -2- conducted by the second respondent in the RCP. The landlady contended that she bona fide needed the petition schedule building for accommodating her son PW1 to conduct business in electrical items. 3. After analysing the evidence adduced by the parties, the learned Rent Controller allowed the petition under Section 11(3) and also under Section 11(4)(i). 4. In appeal, the learned Appellate Authority found that the evidence adduced by the parties would show that the landlady was having so many buildings in her possession more particularly, the three rooms bearing Nos.87, 88 and 90 covered by Ext.B3. It was also brought out in evidence that the landlady was constructing another building consisting of 13 rooms. Taking note of those aspects and the further fact that the landlady did not state anything about the possession of those buildings, the learned R. C. R. No.44 of 2007 & C. O. No.104 of 2010 -3- Appellate Authority found that the need projected by the landlady is not true and that in view of the first proviso thereto the claim under Section 11(3) cannot be sustained. 5. Though the learned counsel for the landlady has addressed arguments challenging the findings under Section 11(3), we are not impressed by the same especially because the landlady was found to be in possession of three vacant rooms very near to the petition schedule room which can be used for conducting business if her son/PW1 actually needs to conduct business. 6. As regards the claim for eviction on the ground of sub lease, Sri.K.V.Sohan, the learned counsel for the tenants made very strenuous arguments. The second respondent in the RCP was examined as RW1. It was contended that RW1 was conducting business only on behalf of his brother who is in Gulf. The contention that was R. C. R. No.44 of 2007 & C. O. No.104 of 2010 -4- advanced was to the effect that even at the time of lease in 1985, RW1's brother was in Gulf. But the fact that lease deed was executed by the first respondent in the RCP in favour of the landlady was not disputed. Though it was contended by the tenant that there are account books and other records which would show that the amount was actually invested by the first respondent in the RCP for the conduct of business and the income therefrom was given to him, those account books and records were not produced to substantiate the contention that the business was actually run by him. They relied upon the licence fee receipts and the extract of the licence Register to contend that the business that was conducted in the petition schedule building stood in the name of the first respondent in the RCP alone. Though the licence stood in the name of the first respondent, the authorities below found that those R. C. R. No.44 of 2007 & C. O. No.104 of 2010 -5- documents will not suffice to hold that there was no secret arrangement between R1 and R2 in the RCP. According to the landlord the licence was only a camouflage to cover up the secret understanding between them. Sri.K.V.Sohan, the learned counsel would strenuously argue that RW1 is residing in the very same Tarwad house where his mother and the wife and children of the first respondent in the RCP are staying. It was also pointed out that RW1 has given evidence to the effect that the wife and children of the first respondent in the RCP were depending on the income from the petition schedule building and that for their livelihood no money was being sent by the first respondent in the RCP. It was stated by RW1 that a power of attorney was executed by his brother for the conduct of the business, but that power of attorney was not produced. On the other hand, the contention that was consistently put forward by RW1 was R. C. R. No.44 of 2007 & C. O. No.104 of 2010 -6- that he was acting only as a Manager for the conduct of the business. But except the oral vibration of RW1, no other evidence was adduced to substantiate that plea. In the absence of any other document both the authorities were not prepared to act upon the licence fee receipts and extract of the licence fee register to hold that the business was conducted by the first respondent in the RCP. In view of the fact that admittedly the business is being run by RW1 and since no document or accounts were produced to show that he was acting only as a Manager of his brother in Gulf, the Appellate Authority did not accept the case of RW1 that he (RW1) was only acting as a Manager of his brother. Both the authorities thus, concurrently found that there was objectionable subletting or transfer of exclusive possession in favour of RW1. We find no illegality, irregularity or impropriety in the finding entered by the two courts below. R. C. R. No.44 of 2007 & C. O. No.104 of 2010 -7- Hence, this revision stands dismissed and the Cross Objections filed by the landlords also will stand dismissed. 7. Learned counsel Sri.K.V.Sohan made a fervent request to grant one year time to the tenants to vacate the petition schedule building. When eviction is on the ground of sub lease, we are usually not inclined to grant time to vacate the petition schedule building, but considering all the aspects, we are inclined to grant one year time to the tenants to vacate the petition schedule building, but on certain conditions. We notice that the rent presently paid is only Rs.800/-. We feel that the tenant should be directed to pay Rs.1,000/- as monthly rent with effect from 01/04/11. 8. The revision petitioners shall file an affidavit within three weeks from today before the execution court or Rent Control Court, as the case may be, undertaking to surrender the petition schedule building peacefully to the landlords R. C. R. No.44 of 2007 & C. O. No.104 of 2010 -8- within one year 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 from 1st April, 2011 till the date of actual surrender the revision petitioners will pay Rs.1,000/- per mensem as occupation charges to the landlords. We make it clear that the revision petitioners/tenants will get the benefit of time granted as above only if they file the affidavit on time and honour the undertakings contained therein. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/- R. C. R. No.44 of 2007 & C. O. No.104 of 2010 -9-