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 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 RCRev..No. 477 of 2005() ------------------------ RCA.79/2004 of DISTRICT COURT/RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.123/2002 of RENT CONTROL COURT/ADDL.,MUNSIFF-I, KOZHIKODE .................... REVISION PETITIONER/2ND RESPONDENT/2ND RESPONDENT :- ------------------------------------------------------------------------------------------ C.M.MUHAMMED ASHRAF, AGED YEARS, S/O.MUHAMMED KOYA, ROOM NO.11/31, KOORIYIL LANE, CHEROOTY LINE, KOZHIKODE-32, NAGARAM AMSOM AND DESOM OF KOZHIKODE TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S)/APPELLANT/2ND/1ST RESPONDENT/PETITIONER/ 2ND/1ST RESPONDENT :- ------------------------------------------------------------------------------------------------ 1. BASIL MUHAMMED KOYA, AGED 25 YEARS, S/O.KUMMATTI VEETTIL MUHAMMED KOYA, PANNIYANKARA AMSOM AND DESOM OF KOZHIKODE TALUK. 2. K.P.HAMSA, AGED 36 YEARS, S/O.K.P.KUNHI MUHAMMED, RESIDING AT KALPALLI HOUSE MELE CHIRAKKARA, CHIRAKKARA P.O., MANANTHAVADI, WAYANAD, CHIRAKKARA AMSOM AND DESOM OF WAYANAD TALUK. ADV. DR.K.B.MUHAMED KUTTY, SENIOR ADVOCATE SRI.K.M.FIROZ THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------- R.C.R. No.477 of 2005 ------------------------------ Dated this the 13th day of December 2010 O R D E R N.K.Balakrishnan, J. This revision petition is filed by the 2nd respondent in the RCP who is alleged to be in sub-tenant. Sub-lease alleged by the landlord was found against by the learned Rent Controller. In appeal, the learned Appellate Authority found that there was transfer of exclusive possession or sub-lease in favour of the revision petitioner and hence order of eviction was passed under Section 11(4)(i) of Act 2 of 65. 2. The revision petitioner contends that the court below has actually accepted the plea regarding the rate of rent fixed and the periodical enhancement as stated by the revision petitioner and so it probabilises his case that the commencement of the lease was not on 1.4.96 but in 1993. R.C.R. No.477/05 -: 2 :- The fact that on an arithmetical calculation the periodical enhancement of rent as pleaded by the revision petitioner was found to be true, is no reason to say that the joint lease pleaded by the revision petitioner is true. According to the revision petitioner, though Ext.P14 lease deed was executed in the name of the 1st respondent in the RCP describing him as the tenant of the petition schedule building, in fact the revision petitioner and the 2nd respondent were co-tenants and that from the very inception of the lease, rent was being paid by the revision petitioner alone. The learned counsel for the revision petitioner has taken us through the entry regarding payments made by way of cheques evidenced by the entries in Exts.B11(a) and B11(b), the pass books produced by the revision petitioner which stood in his name. Though, some payments are seen entered in the pass books it is not seen that the rent was continuously paid by the revision petitioner. Even if it is accepted that the rent was paid by way of cheques drawn on the account of the revision R.C.R. No.477/05 -: 3 :- petitioner that will not come to his rescue since all the rent receipts marked as Ext.B1 series were issued only in the name of the 1st respondent in the RCP. Not even as a single rent receipt was issued in the name of the revision petitioner. 3. It was pointed out by the learned counsel for the revision petitioner that the landlord has no consistent case as to whether the revision petitioner is only a sub-tenant or whether he is a manager. To fortify his submission, he has drawn our attention to the question put to the revision petitioner during cross examination which may indicate that he was only a manager. What actually was the question put by the learned counsel for the landlord to elicit that answer is not clear. If the case set up by the landlord is found otherwise credible and acceptable, his just claim should not be allowed to be shattered or scuttled for the simple reason that his counsel inadvertently or otherwise happened to put an imprudent question during the cross examination of the R.C.R. No.477/05 -: 4 :- tenant. It is also pertinent to note that the revision petitioner had no case that he was/is only the Manager of the 1st respondent in the RCP. On the other hand his case is that he is a co-tenant. It is not disputed that R1 in the RCP is abroad. He remained exparte in the RCP also. The case set up by the revision petitioner that he is a co-tenant could not be substantiated by producing credible and acceptable materials. When Ext.B14, the rent deed itself shows that the lease was granted only in favour of the 1st respondent in the RCP and since there is no other material to hold otherwise, the finding entered by the learned Appellate Authority that the lease was granted in favour of the 1st respondent in the RCP alone is only to be upheld. 4. When the revision petitioner was examined as RW1 he categorically admitted that he is in exclusive possession of the petition scheduled building. He also admitted that the rent receipts were issued only in the name of R2 herein. There is no iota of evidence to hold that R.C.R. No.477/05 -: 5 :- RW1 was ever treated by the landlord as his tenant. It was also admitted by RW1 that there is no document to fortify his plea that the business was/is jointly owned by him and R2 herein. Though a vague plea was raised by RW1 that he is only a partner, that plea was falsified by his own statement that he is not a partner but only a proprietor. Having admitted exclusive possession by the revision petitioner, when examined as RW1, court can legitimately draw the presumption that the transfer was for valuable consideration. His definite case is that he is in exclusive possession of the petition scheduled building as a lessee and not as a manager. Having failed to prove that he is a lessee under the landlord it should lead to the inevitable conclusion that the revision petitioner is in possession of the petition scheduled building only as a sub-lessee. The learned Appellate Authority has surveyed the entire evidence in its correct perspectives and come to the right conclusion warranting no interference by this Court under R.C.R. No.477/05 -: 6 :- Section 20 of the Act. We find no illegality, irregularity or impropriety in the finding entered by the Appellate Authority. As such the order of eviction passed by the Appellate Authority under Section 11(4)(i) is only to be confirmed. We do so. Though in the revision petition, the order of eviction passed under Section 11(2)(b) was also assailed, the learned counsel has not challenged that order evidently because the tenant can get that order vacated by resorting to Section 11(2)(c) of the Act. 5. Normally court will be reluctant to grant time to a sub-tenant to vacate the tenanted building. However, considering the totality of the circumstances, we are inclined to grant time till 31.12.2011 to vacate the petition schedule building, but on certain conditions. In the result, this revision petition is dismissed. The revision petitioner is granted time till 31.12.2011 to vacate the petition schedule building on condition that he should deposit the entire arrears of rent before the court R.C.R. No.477/05 -: 7 :- below within one month from today and on further condition that he should continue to pay occupational charges at the rate of Rs.925/- per month as and when it falls due and that he will not induct any other person in possession of the petition scheduled building and shall surrender vacant possession of the petition scheduled building to the landlord on or before the date mentioned above. The revision petitioner will get the benefit of time granted above only if he files the affidavit within three weeks from today and honours all the undertakings given by him. PIUS C. KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. Jvt