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 7TH FEBRUARY 2011 / 18TH MAGHA 1932 RCRev..No. 104 of 2008() ------------------------ RCA.49/2005 OF THE RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM RCP.64/2004 OF THE RENT CONTROL COURT, ERNAKULAM. .................... REVISION PETITIONER/APPELLANT/PETITIONER: ----------------------------------- SEBASTIAN K.M., AGED 42 YEARS, S/O.MATHEW, KATTUNILATH HOUSE, KALOOR P.O., KOCHI-17. BY ADV. SRI.P.SANJAY SMT.A.PARVATHI MENON RESPONDENTS/RESPONDENTS: --------------------- 1. K.J.XAVIER, KALATHIPARAMBIL HOUSE, KALATHAILPARAMBIL ROAD, VADUTHALA P.O., COCHIN-23. 2. MR. TENSEN, CC 41/3385, BAHARATH AUTO SERVICE, VICTORIA TOWERS, BANERJEE ROAD, KACHERIPADY, KOCHI-18. ADV. SRI.DINESH R.SHENOY SRI.V.V.UNNIKRISHNAN SRI.A.JOSEPH GEORGE THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 07/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- R.C.R.No.104 of 2008 ---------------------------------------------------- Dated this the 7th day of February, 2011 Order Pius C.Kuriakose, J. The landlord is in revision challenging the judgment of the Rent Control Appellate Authority confirming the order passed by the Rent Control Court declining the eviction which was sought on the ground of subletting under Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act. 2. The allegation of the landlord was that the first respondent in the R.C.P. is the tenant and that the 2nd respondent is an unauthorised sub lessee under him. Shorn off details, the specific defence of the respondents in the R.C.P. was that there is no sub lease or transfer and that the 2nd respondent in the R.C.P. was a mechanic in the workshop which is being conducted by the 1st respondent in the R.C.P. in the schedule building. Apart from disputing the existence of the eviction ground under Section 11(4)(i), the tenant denied the title of the landlord and set up title in himself. In the enquiry conducted by the Rent Control Court, the evidence consisted of Exts.A1 to RCR 104/2008 2 A6, Ext.C1 Commissioner's report and testimonies of witnesses P.Ws.1 to 4 and R.Ws.1 to 4. The Rent Control Court, on appreciating the evidence, came to the conclusion that the denial of the title of the landlord made by the tenant was without bonafides. It was held that there exists a landlord-tenant relationship between the petitioner in the R.C.P. and the 1st respondent in the R.C.P. Accordingly, the order of eviction which was sought on the ground of arrears of rent was allowed. However, coming to the ground under Section 11(4)(i), the Rent Control Court would accept the oral evidence adduced by R.W.1, the tenant and R.W.2, the alleged tenant and hold that the above evidence is sufficient to find that R.W.2 is an employee of R.W.1. The Appellate Authority on considering an appeal preferred by the revision petitioner/landlord would endorse the finding of the Rent Control Court and dismiss the appeal. 3. In this revision various grounds are raised assailing the judgment of the Appellate Authority. Smt.Parvathi Menon, learned counsel for the revision petitioner addressed strenuous arguments before us based on the grounds. She took us through the order of the Rent Control Court and the judgment of the RCR 104/2008 3 Appellate Authority. As requested by us, she would readover to us the testimonies of P.W.1 and R.Ws.1 and 2 as well as Exts.C1 Commissioner's report. One of the arguments which were very seriously advanced before us by Smt.Parvathi Menon was that in this case where the specific defence of the respondents in the R.C.P. is that the jural relationship between them is that of the employer and employee, the respondents did not produce any documents which would show as to what exactly is the jural relationship between them. The authorities below should have drawn adverse inferences against the respondents. Smt.Parvathi Menon also submitted that there is much deviation in the case pleaded and that was pursued regarding the jural relationship between the respondents in the R.C.P. The case pleaded is that the jural relationship between them as employer and employee. But evidence indicates that their relationship is that of partners (persons who share the income). The statutory authorities should have noticed this deviation and adverse inferences should have been drawn against the respondents in the R.C.P. 4. It is trite by decisions of this court that when it is conceded by the tenant that somebody other than himself is in RCR 104/2008 4 occupation of the petition schedule premises or a portion of the petition schedule premises, it is for the tenant to establish by producing cogent and convincing materials as to what is the jural relationship between him and the person in occupation. In the instant case, the definite plea of the tenant is that the jural relationship between him and the alleged sub-tenant (whose presence in the building is admitted by the tenant) is that of employer and employee. According to R.W.2, he is getting an amount of Rs.4000/- per mensem towards the work rendering. It is revealed in evidence that both R.Ws.1 and 2 are conducting other activities from the petition schedule building. If, as a matter of fact, the jural relationship between respondents 1 and 2 is that of a employer and employee as they contend, there should have been documents to prove the same. The account books pertaining to the workshop for the past five years will prove the jural relationship between them. The stand taken by R.W.2 while he mounted the box as to his jural status ( of a mechanic or a partner of R.W.1) is significant. According to us, the Rent Control Appellate Authority and the Rent Control Court were not justified in ignoring the absence of evidence on the side RCR 104/2008 5 of the tenants regarding the jural relationship between respondents 1 and 2 and also the deviation in the case pleaded by the respondents and the case that was pursued by them in evidence. At the same time, we are not inclined to decide the issue raised. We feel that the respondents should be given an opportunity to produce the documents such as account books during the past five years which will reveal as to what exactly the jural relationship between respondents 1 and 2. We, however, are not inclined to afford such opportunity without imposing conditions. One of the conditions will be to refix the rent tentatively as we notice that the rent presently paid is far below the rent the building may fetch if the same is let out now. 5. The result is that the order of the Rent Control Court and the judgment of the Appellate Authority to the extent the same pertains to the ground under Section 11(4)(i) are set aside. The findings regarding contract rent and rent in arrears are confirmed. The R.C.P. is remanded to the court below for fresh decision on the ground under Section 11(4)(i). The court below will give opportunity to the respondents to adduce documentary evidence to support their defence under Section 11(4)(i). RCR 104/2008 6 6. Rent payable by the respondents is fixed with effect from 1.3.2011 at Rs.3000/- mensem. Till fair rent is fixed regularly under Section 5 on application by either party, respondents shall pay at the above rate. The parties will enter appearance before the Rent Control Court on 15.3.2011. The court shall complete the enquiry and pass revised order by end of July, 2011. PIUS C.KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. srd RCR 104/2008 7