IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 RCRev..No. 84 of 2011 -------------------------------- [RCA.NO.23/2009 OF RENT CONTROL APPELLATE AUTHORITY/ ADDITIONAL DISTRICT COURT, VADAKARA, RCP.NO.40/2008 OF RENT CONTROL COURT/MUNSIFF COURT, VATAKARA] .................... PETITIONER/APPELLANT IN RCA 23/2009 – RENT CONTROL APPELLATE AUTHORITY, VATAKARA/ RESPONDENT IN RCP 40/2008 – RENT CONTROL COURT, VATAKARA: ------------------------------------------------------------------------------------------------------------- PALORAMMAL KASIM, S/O.ABDULLA, AGED 50 YEARS, RESIDING AT THATTAN KUNI, THODANNUR POST, VATAKARA VIA., VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADVS. SRI.B.KRISHNAN, SRI.R.PARTHASARATHY. RESPONDENT/RESPONDENT IN RCA 23/2009 – RENT CONTROL APPELLATE AUTHORITY, VATAKARA/ PETITIONER IN RCP 40/2008 – RENT CONTROL COURT, VATAKARA: --------------------------------------------------------------------------------------------------------------------- THEKKECHALIL MARIYAM, D/O.SOOPY, AGED 78 YEARS, CHEMMARATHOOR AMSOM, THODANNUR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADVS. SRI.P.B.KRISHNAN, SMT.GEETHA P.MENON, SRI.P.B.SUBRAMANYAN. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.C.R. NO. 84/2011: ORDER ON I.A. NO. 445/2011 IN R.C.R. NO. 84/2011 DISMISSED SD/- PIUS .C. KURIAKOSE, JUDGE, 29/06/2011. SD/- N.K.BALAKRISHNAN, JUDGE. APPENDIX PETITIONERS' ANNEXURES: ANNEXURE A-1: COPY OF THE PETITION FOR LEAVE TO AMEND THE COUNTER STATEMENT. ANNEXURE A-2: COPY OF THE PETITION FOR LEAVE TO EXAMINE THE PETITIONER BY INTERROGATORIES. RESPONDENTS' ANNEXURES: //TRUE COPY// P.S. TO JUDGE. Prv. PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- R.C.R.No.84 of 2011 ---------------------------------------------------- Dated this the 29th day of June, 2011 Order Pius C.Kuriakose, J. Under challenge in this revision filed by the tenant is the order of eviction passed concurrently by the Rent Control Court and the Appellate Authority on the ground of cessation of occupation under Section 11(4)(v) of Act 2 of 1965. The Rent Control Court on appreciating the evidence adduced by the parties which consisted of Exts.A1, B1 to B4, Ext.C1, P.Ws.1 and 2 and R.Ws.1 and 2 came to the conclusion that the eviction ground under Section 11(4)(v) stood established in this case and accordingly ordered eviction. The learned Appellate Authority considered an appeal filed by the tenant made a reappraisal of the evidence and would concur with the conclusions arrived at by the Rent Control Court. The appeal was dismissed. One of the grounds which was urged seriously before the Rent Control Court and the Appellate Authority was that the eviction petition was liable to fail for want of a consent in writing from the owner of RCR 84/2011 2 the building as required under Section 11(16) of Act 2 of 1965. This ground was repelled by the two statutory authorities taking the view that on the terms of Ext.B1 deed of partition, the petitioner in the R.C.P., the respondent herein was a life estate holder and that as a life estate holder she was entitled to maintain the R.C.P. even without any consent from the owner of the building. In this revision under Section 20 various grounds have been raised challenging the judgment of the Rent Control Appellate Authority and one of the grounds pertain to the correctness of the decision taken by the two statutory authorities to repel the contention based on Section 11(16). 2. We have heard the submissions of Mr.B.Krishnan, learned counsel for the revision petitioner and Mr.P.B.Krishnan, learned counsel for the respondent. 3. Even though Mr.B.Krishnn addressed arguments based on all the grounds raised in the Memorandum of Revision, the learned counsel gave more thrust to the ground under Section 11 (16). Drawing our attention to the principles of Mohammedan Law as enunciated by Mulla, Mr.Krishnan submitted that the concept of life estate is unknown to Mohammedan law. According RCR 84/2011 3 to him, Ext.B1 document under which the petitioner in the R.C.P. claims rights over the building was suppressed by the landlady and this was why the revision petitioner did not specifically raise the contention based on Section 11(16) in the first instance. He submitted that before the Rent Control Appellate Authority an application was filed seeking to amend the statement of objections filed by the tenant to the R.C.P and that application was not considered favourably by the Rent Control Appellate Authority. According to the learned counsel, the suppression of Ext.B1 by the respondent in the R.C.P. is a conduct which would entitle her to relief at the hands of the authorities under the Act who are bound evade by principles of equity, justice and good conscience as per the statutory rules. All the submissions of Mr.B.Krishnan were opposed by Mr.P.B.Krishnan, learned counsel for the respondent who reminded us of the contours of our jurisdiction under Section 20 of the Act. According to him, in this attenuated jurisdiction under Section 20, this court will not be justified in upsetting the conclusions and findings arrived at by the two statutory authorities. Learned counsel further submitted that sub-section (16) of Section 11 cannot have any application RCR 84/2011 4 in this case. 4. We have anxiously considered the rival submissions addressed at the Bar. Section 2(3) of Act 2 of 1965 defines the term 'landlord' as follows: “ “Landlord” includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant.” Explanation: A tenant who sub-lets shall be deemed to be a landlord within the meaning of this Act in relation to the sub- tenant; Sub-section (16) of Section 11 of the statute provides as follows: “Notwithstanding anything contained in this section, no person who is receiving or is entitled to receive the rent of a building merely as an agent of the landlord shall, except with the previous written consent of the landlord be entitled to apply for the eviction of a tenant.” The short question that arises for decision in this revision is RCR 84/2011 5 whether it was necessary for the petitioner in the R.C.P., the respondent herein, to have obtained previous written consent from the proprietory title holder of the building before she instituted the petition for eviction. In our view, the above question can be answered without much difficult in favour of the respondent as the statutory definition shows that the petitioner in the R.C.P. was admittedly receiving the rent from the revision petitioner. On the terms of Ext.B1, she is entitled to receive the rent. Sub-section (16) of Section 11 can be applicable only when a person is receiving or is entitled to receive the rent of a building “merely as an agent of the landlord.” In the instant case, it is not as agent of any other landlord that the respondent has been receiving the rent from the revision petitioner. She has been receiving the rent in her own capacity and it is clear that she is landlady for the purpose of Section 2(3) of the Act. The contentions based on Section 11(16) necessarily has to fail and the same is repelled. 5. Now coming to the merits of the matter, having gone through the impugned judgment of the Rent Control Appellate Authority which under the statutory scheme is the final court on RCR 84/2011 6 facts, we find that the findings entered under Section 11(4)(v) is a conclusion founded on evidence on record. When the statutory final fact finding authority has entered a reasonable finding on the basis of the evidence available on record, it will not be possible for us within the narrow contours of revisional jurisdiction to upset those findings by venturing upon a reappraisal of the evidence. The result is that the revision fails and the same will stand dismissed, however, without any order as to costs. 6. After we pronounced the order, Mr.B.Krishnan, learned counsel for the revision petitioner requested that reasonable time may be given to the revision petitioner for winding up his business. We, therefore, direct the execution court to keep in abeyance all proceedings for delivery for a period of five months from today subject to the following conditions: The revision petitioner files an affidavit before the execution court or the rent control court, as the case may be, undertaking to give peaceful surrender of the building in question to the respondent on or before the expiry of five months from today and undertaking further to discharge the arrears of rent, if any, within RCR 84/2011 7 one month from today and to pay occupational charges at the existing rate without fail. We make it clear that the revision petitioner will get the benefit of time granted as above only if he files the affidavit on time and honours the undertakings contained therein. PIUS C.KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. srd RCR 84/2011 8 RCR 84/2011 9