IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 RCRev..No. 69 of 2009() ----------------------- RCA.115/2006 of D.C. & SESSIONS COURT,KOZHIKODE RCP.44/2001 of PRL.M.C.KOZHIKODE-I .................... REVISION PETITIONERS/APPELLANTS/RESPONDENT NOS.1 & 4 TO 7 -------------------------------------------------------------- 1. CHEROTT VIJAYAKUMAR, AGED 55 YEARS, S/O.SREENIVASAN, CHEROTT HOUSE, KACHERI AMSOM DESOM, KOZHIKODE-11. 2. CHEROTT PADMINI, W/O.SREENIVASAN, CHEROTTU HOUSE, KACHERI AMSOM, DESOM, KOZHIKODE. 3. CHEROTT SUDEER BABU, S/O.SREENIVASAN, CHEROTTU HOUSE, KACHERI AMSOM, DESOM, KOZHIKODE. 4. CHEROTT SATHEESH, S/O.SREENIVASAN, CHEROTTU HOUSE, KACHERI AMSOM, DESOM, KOZHIKODE. BY ADV. SRI.K.M.FIROZ RCR.No.69/09 RESPONDENT(S): RESPONDENTS 1 TO 5/PETITIONERS 1 & 2 AND RESPONDENTS 2, 3 AND 7 ------------------------- 1. SURESH, AGED 48 YEARS, S/O.THEKKEYIL SURENDRARAJAN, KALATHINKUNNU AMSOM, DESOM, KOZHIKODE. 2. M.N.BALAKRISHNAN, S/O.RAMUNNI NAIR, MELENEDULLIL HOUSE, P.O.PERUMANNA, PERUMANNA AMSOM, DESOM, KOZHIKODE. 3. KUZHUPALLI VETTATT RADHA, D/O.THEKKYIL ACHUTHAN, 1/128, RRAMALINGAM ROAD, COIMBATORE. 4. JAYAKUMAR, S/O.KRISHNAN NAMBOODIRI, J.S.STORE, 7/267, COIR BUSINESS, COURT ROAD, NAGARAM AMSOM DESOM, KOZHIKODE. 5. CHEROTT ANITHA, D/O.SREENIVASAN, CHERUTTU HOUSE, KACHERI AMSOM, DESOM, KOZHIKODE. ADV. SRI.V.V.SURENDRAN FOR R1 SRI.P.A.HARISH FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 30/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & M.C.HARI RANI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R .No.69 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of March, 2009 ORDER Pius.C.Kuriakose, J. We have heard Sri.K.M.Firoz, learned counsel for the revision petitioner and also Sri.P.A.Harish, who has taken notice on behalf of respondents 1 and 2. The rent control court and the appellate authority have concurrently found that the revision petitioner is liable to be evicted on the eviction ground contemplated by clause (i) of Sub Section (4) of Section 11 of the Kerala Buildings ( Lease and Rent Control) Act 1965. Sri.Firoz would argue on the authority of the judgment of this court in Abdurehim Sait v. Sahul Hameed ( 1981 (KLT 289) that mere transfer of possession of tenanted premises to somebody is not sufficient to to constitute an eviction ground under Clause (i) of Sub Section (4) of Section 11. According to him, what is necessary is transfer of juristical possession. We are unable to agree. According to us, eviction ground under clause (i) of Sub Section (4) of Section 11 will be established once it is seen that the tenant has RCR.No.69/09 2 unauthorisedly sub let or unauthorisedly transfer his rights under the lease to somebody. The most important right, which a tenant has on the terms of any lease, is to possess and enjoy the leasehold property. Once it is seen that possession of the leasehold premises has been transferred and when it is established and almost practically admitted that such transfer is without authorisation from the landlord, eviction ground is certainly established. According to us, Ext.B4 in this case would establish to the very hilt that exclusive possession of the entirety of the building, which is subject matter of the RCP, has been given by the revision petitioner to the fourth respondent and that at the relevant time, it is the fourth respondent who has been carrying on business in the premises namely the time when the statutory intimation notice Ext.A2 was sent to the revision petitioner. It is not disputed that within a period of thirty days, the revision petitioner did not terminate such lease and send away the fourth respondent. 2. Of course, we notice an affidavit dated 28/03/2009 filed by the revision petitioner stating that he continues to be in possession of the property and that he has not transferred his rights under the lease to RCR.No.69/09 3 anybody as presently alleged by the second respondent. In fact such an affidavit has been filed in the context of a submission by Sri.Harish that as of now the revision petitioner has further sub let the building to another person - a person other than the person referred to in Ext.A2 intimation notice. 3. Sri.Firoz as his last submission would request for grant of 10 months time to vacate the premises. This request is opposed tooth and nail by Sri.P.A.Harish who has placed before us photographs showing the business in Arecanuts presently conducted in the petition schedule building. He submitted on the basis of the photographs that the petitioners do not have any licence for conducting trade in Arecanuts and that Arecanuts business is being carried on by the person who is seen in the photographs shown to us. These photographs will form part of records in this case. 4. In this jurisdiction, our concern is to decide whether the judgments of the statutory authorities namely, rent control court and the appellate authority are vitiated by any illegality, irregularity or impropriety to the extent of warranting invocation of the revisional RCR.No.69/09 4 jurisdiction under Section 20. It is clear to our mind that there is no warrant at all for invocation of the said jurisdiction which is an attenuated one. Taking into account the very appealing submission of Sri.Firoz despite the concurrent findings of the courts below that the revision petitioner is guilty of objectionable transfer/sub lease, we are inclined to grant six month's time to the revision petitioner to vacate the petition schedule premises subject to the following conditions : The first revision petitioner will file an affidavit before the execution court undertaking to peacefully surrender the petition schedule premises to the respondents by 30/09/2009 and undertaking further that : a) he will discharge arrears of rent, if any, within one month. b) he will continue to pay the rent which falls due till date of his actual surrender of the premises as and when it falls due. c) he shall not commit any act of waste in RCR.No.69/09 5 the building and shall keep the building under good repair and tenantable condition. d) he shall not induct anybody into possession of the premises. The affidavit will be filed by the first revision petitioner on or before 07/04/2009. Once the execution court notices such an affidavit, that court will adjourn the E.P. to 01/10/2009. PIUS.C.KURIAKOSE JUDGE M.C. HARI RANI JUDGE sv. RCR.No.69/09 6