IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 RCRev..No. 270 of 2010(E) ------------------------------ RCA.38/2009 of ADDL. RENT CONTROL APPELLATE AUTHORITY-I, TRIVANDRUM RCP.52/2007 of ADDL.M.C. (RCC),TRIVANDRUM .................... REVISION PETITIONER/RESPONDENTS/PETITIONERS ----------------------------------------------------------- 1. HAMEEDA BEEVI, D/O.LATE MARIYAM BEEVI KOTTAPAKKU HOUSE, MARKET ROAD, CHALAI THIRUVANANTHAPURAM NOW RESIDING AT SANI BHAVAN, TC 18/3055,SREE NAGAR MUTTADA, THIRUVANANTHAPURAM 2. NASARIN, D/O.LATE MOHAMMED HUSSAIN, KOTTAPAKKU HOUSE,MARKET ROAD, CHALAI THIRUVANANTHAPURAM, 3. NISIYA, D/O.LATE MOHAMMED HUSSAIN -DO-DO- 4. NASEEF, S/O.LATE MOHAMMED HUSSAIN -DO-DO- BY ADV. SRI.B.SATHIQ SRI.MAHESH ANANDAKUTTAN RESPONDENT(S)/APPELLANT/COUNTER PETITIONER: ----------------------------------------------------------- SELVA RAJ, S/O.RAGHAVAN, TC.39/592 MARKET ROAD, CHALAI P.O., THIRUVANANTHAPURAM-695036 ADV. SMT.M.HEMALATHA SRI.S.RAKESH THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ R. C. R. No.270 of 2010 ------------------------------------------------ Dated this the 14th day of July, 2011 ORDER Pius C. Kuriakose, J Under challenge in this revision filed under Section 20 of Act 2 of 1965 by the landlords being the legal heirs of the original landlady is the judgment of the Rent Control Appellate Authority reversing the order of eviction passed by the Rent Control Court under Section 11(4)(i) and dismissing the Rent Control Petition allowing the RCA and finding that the eviction ground under Section 11(4)(i) is not established by evidence. The case of the original landlady as pleaded is that the petition schedule building is let out to the respondent Sri.Selva Raj on the basis of Ext.A2 Rent Deed which contains a provision that the tenant is not entitled to sublet or transfer his rights under the lease to others. The R. C. R. No.270 of 2010 -2- tenant has already left India and is presently working in Saudi Arabia. Before leaving India the tenant unauthorisedly transferred the tenancy right to one Binu who is presently conducting business. The sublease/transfer is in violation of the terms of the lease and the sublease was not terminated in spite of Ext.A3 lawyer notice. 2. To the Rent Control Petition Binu the alleged sublessee filed statement of objections claiming to be the power of attorney holder of the tenant. It was contended that monthly rent at the agreed rate of ` 1,000/- was paid by the tenant up to the month of December, 2006 and thereafter the landlady refused to receive the rent. The tenant thereupon sent monthly rent by money order. The same was also refused. The averment that the tenant is presently at Saudi Arabia is admitted. It is contended that the tenant is searching for a permanent job in Saudi Arabia. Before leaving for Saudi Arabia the tenant had executed R. C. R. No.270 of 2010 -3- Ext.B6 power of attorney in favour of Binu, his own brother- in-law and thereby entrusted the tenant's business temporarily with Sri.Binu for conducting business on behalf of the tenant during his absence from station. It is also contended that in the retail vegetable business which was being conducted by the tenant in the petition schedule building, including the brother-in-law Binu, the tenant had two employees who are being paid wages from out of the income from the business. The allegation of subletting and transfer is stoutly denied and it is contended that the landlady cannot insist on the tenant's presence every day in the building especially as the tenant has engaged two employees for conduct of the business. 3. The Rent Control Court recorded evidence which consisted of oral evidence of PWs.1 to 4 and Exts.A1 to A6 on the side of the landlords; the oral evidence of CPW1 and CPW2 and Exts.B1 to B8 on the side of the tenants. Exts.X1 R. C. R. No.270 of 2010 -4- series and X2 were marked as court exhibits. The Rent Control Court on evaluating the evidence came to the conclusion that the eviction ground under Section 11(4)(i) was established in the case against the tenant and accordingly ordered eviction. The learned Rent Control Appellate Authority, however, would make a re-appraisal of the evidence considering an appeal preferred by the tenant and would reverse the findings of the Rent Control Court and pass the impugned judgment dismissing the Rent Control Petition. 4. In this revision under Section 20 filed by the landlord various grounds are raised challenging the judgment of the Appellate Authority. It is urged that the learned Appellate Authority has not appreciated the evidence on record correctly and that many vital items in the evidence were lost sight of by the Appellate Authority resulting in serious prejudice to the revision petitioners/landlords. Appreciation R. C. R. No.270 of 2010 -5- of the evidence by the learned Appellate Authority is thoroughly irregular and the interference by the Appellate Authority with the order of the Rent Control Court is the result of such appreciation of evidence, it is urged. 5. Very extensive submissions were addressed before us by Sri.B.Sathiq, the learned counsel for the revision petitioners and all his submissions were resisted by Smt.M.Hemalatha on behalf of the respondent/tenant. We have given our anxious consideration to the submissions addressed at the Bar. We have scanned the judgment of the Appellate Authority as well as the order of the Rent Control Court. We find considerable merit in the submission of the learned counsel for the revision petitioners that the appreciation of the pleadings and the evidence available in this case by the learned Appellate Authority was illegal, irregular and improper. In order that the prerequisites for establishment of objectionable sublease in the context of R. C. R. No.270 of 2010 -6- Section 11(4)(i) have been correctly noticed by the learned Appellate Authority also in its judgment. The one circumstance which weighed with the learned Appellate Authority in taking the view that there is no transfer of possession of the petition schedule premises by the tenant in favour of Binu is that under Exts.B1 to B3 trade licence for conduct of vegetable business continues in the name of the tenant. Another circumstance is that the tenant and the alleged sub tenants are brothers-in-law. The learned Appellate Authority also accepts the tenant's version that as authorised by him his brother-in-law, the alleged sub lessee is conducting the business on his behalf. The learned Appellate Authority did notice that the tenant left the country for Saudi Arabia way back in the year 2000 and the power of attorney Ext.B6 upon which the tenant's defence to the plea of sublease is founded was executed in the year 2006. The learned Appellate Authority ignored the above R. C. R. No.270 of 2010 -7- circumstance and has observed that execution of power of attorney becomes necessary only when some official act is required to be performed forgetting that the power of attorney is brought into existence almost contemporaneously with the landlord raising objections as to the conduct of business by a stranger in the building let out by him to the respondent/tenant. 6. We may say now that there are clinching circumstances brought out in the case which will show that Ext.B6 power of attorney notwithstanding its notarial attestation is not duly executed or authenticated. The evidence of CPW2 the tenant as to the circumstances under which Ext.B6 power of attorney came to his hand will not inspire confidence in the mind of any court anxiously searching for truth. The evidence interestingly is to the effect that Ext.B6 was purchased from Sri.Sreedharan Nair (who appears to be the notary who attested Ext.B6) and R. C. R. No.270 of 2010 -8- Sreedharan Nair is referred to as a person who sells powers of attorney. The definite case of the landlord at trial was that on 27/05/06 the day on which Ext.B6 power of attorney is apparently executed CPW2 was not in India. Despite challenge in cross examination to produce the passport or at least its copy CPW2 did not produce the copy of the passport and much less its original. This according to us is a circumstance warranting drawal of adverse inference against the tenant's claim that Ext.B6 power of attorney was duly executed and authenticated. We compared the admitted signature of the tenant on Ext.A2 with his purported signature on Ext.B6. It is transparently clear to us that there is no comparison at all between the admitted signatures and the purported signature and this according to us, is another circumstance supporting the case of the landlord that Ext.B6 is the result of fabrication or concoction. R. C. R. No.270 of 2010 -9- 7. Exts.B1 to B3 relied on very strongly by the learned Appellate Authority are not the licences issued by the local authority. They are only receipts issued by the local authority against remittance of yearly licence fee on the strength of the original licence. Evidently and admittedly these remittances are not made by the tenant who is gainfully employed in Saudi Arabia at the time when the remittances are made. The name of the tenant figures in the receipts for the obvious reason that the original receipt issued by the local authority stands in the name of the tenant. Most importantly Exts.B1 to B3 are post litem documents secured after commencement of the litigation and could have been ignored on that reason alone. 8. The claim of the tenant is that he is working at Saudi Arabia on a monthly salary of ` 9,600/-. But when the tenant's evidence as CPW2 and the alleged sub lessee's evidence as CPW1 if read conjointly, it will be seen that the R. C. R. No.270 of 2010 -10- tenant has been paying a total salary of ` 13,500/- to the alleged employees including CPW1 for conducting the business. It is in this context that the non-production of the accounts pertaining to the business carried on in the scheduled premises assumes significance. It was stated that account books are maintained. It was stated that CPW2 is accounting to CPW1 regarding the vegetable business conducted by him in the premises. But despite challenge the books are not forthcoming. To this situation CPW2 would state in his evidence that accounts were being submitted by CPW1 to his wife in loose papers and his wife used to tear off the papers every week. This version of CPW2 is not at all convincing. 9. Exts.C1, X1, X1(a) to X1(d) and X2 will clearly show that CPW1 Sri.Binu has taken a telephone connection from BSNL in the address of the tenanted premises and the bills were issued to him in the said address. This, according to us, R. C. R. No.270 of 2010 -11- is a strong circumstance which shows that Sri.C.Binu has asserted possession over the tenanted building. Ext.A5 is yet another crucial document which supports the case of the landlord. What turns from Ext.A5 which is seen issued jointly by the state leadership and district leadership of the Kerala Vyapari Vyavasayi Ekopana Samithi is that it is Sri.C.Binu who is given membership in the Samithi in his individual capacity and not in his capacity as power of attorney holder for the tenant. 10. According to us, the finding entered by the learned Rent Control Court that the possession of the premises in question have been transferred by the tenant to CPW1 unauthorisedly is a finding based on a correct appreciation of the evidence oral, documentary and circumstantial. There was no warrant for the Appellate Authority to have interfered with that finding. When compared to the clinching circumstances pointed out by the Rent Control Court, those R. C. R. No.270 of 2010 -12- pointed out by the Appellate Authority in favour of the tenant are not material. We are convinced that the Appellate Authority's judgment is tainted by illegalities, irregularities or improprieties as envisaged by Section 20. We are hence, inclined to interfere in revision. 11. In the result, we set aside the judgment of the Appellate Authority and restore the order of the Rent Control Court. It is found that Sri.Binu, the signatory to the statement of objections is an unauthorised transferee and hence, the order of eviction is liable to be passed on the ground under Section 11(4)(i). Accordingly, order of eviction is passed restoring the order passed by the Rent Control Court. However, we allow the tenant six months time from today to put the landlord in possession. Revision is allowed, however, without any order as to costs. 12. We clarify, however that the benefit of six months' time as granted hereinabove will become available to the R. C. R. No.270 of 2010 -13- tenant and to CPW1 only if both of them file affidavits before the execution court within one month from today undertaking to give peaceful surrender of the building within six months from today to the revision petitioner/landlord and undertaking further that occupational charges at the existing rent rate will also be paid on the due dates without fail and that arrears of rent if any will be discharged within one month from today. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-