IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 RCRev..No. 426 of 2011() ------------------------ RCA.27/2008 of RENT CONTROL APPELLATE AUTHORITY , KOZHIKODE-III RCP.95/2003 of RENT CONTROL COURT KOZHIKODE) .................... REVISION PETITIONER/APPELLANT IN RCA/RESPONDENT NO.1 IN RCP (S): -------------------- K.P.SULFIKKAR, S/O. ABOOBACKER, AGED 45 YEARS, ARAKKALTHODIA @ PATTARTHODIKA PARAMBA, PAYYANAKKAL, KALLAI 673 003, PANNIANKARA AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENT(S)/RESPONDENTS IN RCA/PETITIONER & RESPONDENT NO.2 IN RCP: --------------- 1. SULAIKHA, D/O ABDURAHIMAN HAJI, 49 YEARS, KANAPPAMAKKAMTAKATH HOUSE, PANNIANKARA AMSOM AND DESOM, KOZHIKODE TALUK, 2. NAZAR, S/O. SAIDALIKUTTY, AGED 41 YEARS NINAMVALAPPIL HOUSE, PANNIANKARA AMSOM AND DESOM VALIAPADAM PARAMBU, KOZHIKODE TALUK. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 19/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.HARILAL, JJ. ------------------------ R.C.R. NO. 426 OF 2011 ------------------------ Dated this the 19th day of December, 2011 O R D E R Pius C.Kuriakose, J. The tenant, against whom an order of eviction has been passed by the statutory authorities concurrently on the ground of sub letting, is the revision petitioner. Eviction has been passed against him on the ground of arrears of rent also. But at the very outset it was very fairly submitted by Sri.K.M.Firoz learned counsel for the revision petitioner that, as the order of eviction passed under Section 11 (2)(b) is provisional and can be got set aside by making requisite deposits under Section 11 (2)(c) , it will suffice that we examine the correctness of the order of eviction passed under Section 11 (4)(i). 2. The allegation of the first respondent/landlord was that the building has been sub let or unauthorisedly transfered by the revision petitioner/tenant to Sri.Nazar who is the 2nd respondent herein and in the rent control petition and that despite issuance of intimation notice under the proviso to RCR No. 426 /2011 2 Section 11 (4)(i), the revision petitioner has not terminated the sub lease. The revision Petitioner's defence to the ground of sub letting was one of denial. It was contended that the revision petitioner is a tailor as well as a head load worker. The 2nd respondent Nazar is an employee of the revision petitioner/tenant. The presence of the 2nd respondent is in the capacity as an employee of the revision petitioner. There is no landlord -tenant relationship between the revision petitioner and the 2nd respondent nor is the 2nd respondent in possession of the premises. In the enquiry conducted by the Rent Control Court the evidence consisted of Exts.A1 o A14 series and Exts.B1 to B8. There was also the report submitted by the Commissioner as Ext.C1. The oral evidence consisted of witnesses PW1 and RW1 and RW2. On evaluating the evidence the Rent control Court came to the conclusion that, as the presence of the alleged sub lessee was practically admitted and as the tenant was unsuccessful in proving the employer- employee relationship between him and the alleged sub lessee by producing documents, eviction ground under Section 11(4) (i) stood established. Accordingly order of eviction was passed. RCR No. 426 /2011 3 3. The Appellate Authority under the impugned judgment has made a reappraisal of the evidence and concurred with all the conclusions of the Rent Control Court. Accordingly, the appeal was dismissed. 4. In this revision under Section 20, various grounds have been raised assailing the judgment of the Appellate Authority. Sri.Firoz learned counsel for the revision petitioner addressed arguments before us based on all the grounds raised. Mr.Firoz submitted that to the oral evidence adduced by RW1- the alleged sub tenant which was of the effect that his status in the building is only that of an employee of the revision petitioner, no counter evidence was adduced by the first respondent landlady. Mr.Firoz argued that the very rent control petition was not maintainable. He pointed out that the Rent Control Petition was instituted by the first respondent on behalf of her husband Sri. Abdulla Koya who was also a co-owner. But even as the rent control petition was pending Sri.Abdulla Koya filed a separate rent control petition invoking the self same ground. Both these rent control petitions were consolidated by the Rent Control Court. However, when trial started Sri.Abdulla Koya got the RCR No. 426 /2011 4 rent control petition filed by him dismissed as not pressed. This conduct of Abdulla Koya will show that the present rent control petition was instituted without the consent of Sri.Abdulla Koya. This crucial aspect of the matter was not considered by the statutory authorities. The appreciation of the evidence by the statutory authorities was improper. The law does not require the tenant to be present in the tenanted building all the 24 hours of the day. The law does not prohibit the tenant from having other activities also even as he holds a building on tenancy. The 2nd respondent is only an employee and the authorities were not justified in insisting on documentary evidence to prove employer- employee relationship , so submitted the learned counsel. 5. We have given our anxious consideration to the submissions addressed before us by Mr.Firoz. We have gone through the judgment of the Appellate Authority as well as the order of the Rent Control Court. We remind ourselves of the contours of our jurisdiction under Section 20. In this jurisdiction this court is not expected to make a reappraisal of the evidence for the purpose of substituting the findings of facts arrived at by RCR No. 426 /2011 5 the final fact finding authority viz. the Rent Control Appellate Authority. As for the present case, having gone through the judgment of the appellate authority, we are of the opinion that the findings therein regarding the existence of the eviction ground under Section 11 (4)(i) are findings founded on evidence available on record. Having regard to the nature of the business, we feel that there should have been some documents at least self serving documents (account books, etc.) to indicate that remuneration is being paid to the 2nd respondent by the first respondent. We do not find any illegality, irregularity or impropriety about the concurrent finding entered by the two authorities that the eviction ground under section 11 (4)(i) has been established. The revision fails and the same will stand dismissed. PIUS C.KURIAKOSE,JUDGE K.HARILAL, JUDGE. dpk RCR No. 426 /2011 6