IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 RCRev..No. 274 of 2011() ------------------------------- RCA.24/2004 of I ADDL. RENT CONTROL APPELLATE AUTHORITY, THRISSUR RCP.102/2001 of THE RENT CONTROL COURT OF THRISSUR .................... REVISION PETITIONER(S):/APPELLANT/IST RESPONDENT ----------------------------------------------------------------------------------- K.C.VASUDEVAN, AGED 70, S/O.KOLLARA CHATHUNNI, POST OFFICE ROAD, THRISSUR. BY ADVS. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENT(S): RESPONDENTS/PETITIONER & THE 2ND RESPONDENT --------------------------------------------------------------------------------------------------------- 1. MARY, AGED 69, D/O.NELLISSERY PAILOTH AND W/O.CHETUPUZHAKARAN MATHU, MISSION QUARTERS, CHEMBUKAVU VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT - 680001. 2. N.P.DINESH KUMAR, S/O.NELLIPARAMBIL PUSHKARAN, POST OFFICE ROAD, THRISSUR - 680001. BY ADV. SRI.JIJO PAUL FOR CAVEATOR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DS PIUS C. KURIAKOSE & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No. 274 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of October, 2011. ORDER P. Bhavadasan, J, The tenant, who suffered concurrent orders of eviction is the revision petitioner before this court. The landlord sued the tenant under Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act on the ground of sub letting to third persons. The tenant resisted the claim pointing out that he continued to be in possession and the allegation of sub lease was denied. 2. The Rent Control Court raised issues on the basis of the pleadings. Evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A8 series on the side of the petitioner. The first respondent examined himself as R.W.1 and had Ext.B1 marked. Ext.C1 is the commission report. C.W.1 is the commissioner who prepared Ext.C1. R.C.R. 274//2011. 2 3. The Rent Control Court found that the evidence is clear to the effect that the respondents have parted with possession in favour of third persons and they are in possession of the premises. Accordingly eviction was ordered. 4. The disappointed first respondent carried the matter in appeal as R.C.A.24 of 2004. The Rent Control Appellate Authority confirmed the finding of the Rent Control Court and dismissed the appeal. The said judgment is challenged in this revision. 5. Sri.G.Sreekumar, learned counsel appearing for the revision petitioner pointed out that the courts below have wrongly cast the burden on the respondents and that had resulted in the impugned order being passed. It is also pointed out that the Commissioner had not inspected the property involved in these proceedings and the report is not in respect of the petition schedule premises. Learned counsel drew the attention of this court to the fact that the Rent Control Petition actually related to Room No.35/2432 R.C.R. 274//2011. 3 and eviction is granted in respect of Room No.35/2437. Learned counsel went on to point out that once it is shown that the room inspected by the Commissioner is not the room involved in the petition, it was for the petitioner to show that it is the same room. In fact both the authorities below have held that once the commission report shows that there is parting of possession, the burden is on the tenant to establish that he is still in occupation of the premises. Learned counsel also pointed out that the premises involved in the rent control petition is Room No.35/2432 and the report sought for is in respect of Room No.35/2437. These aspects have not been looked into by the courts below and that had resulted in miscarriage of justice. 6. Learned counsel appearing for the respondent-landlord pointed out that the Rent Control Petition was filed on 9.10.2001 and the commission report was filed on 15.10.2001. Counter statement was filed by the tenant on 14.8.2002, in which there was no objection taken R.C.R. 274//2011. 4 to the commissioner's report. Proof affidavit was filed on 12.6.2003 and the objection to the commission report was filed thereafter on 19.6.2003. It is for the first time therein that a contention was taken that the commission report related to some other building. Learned counsel drew the attention of this court to the fact that the tenant has not produced any document to show that he is continuing in the tenanted premises. It is under these circumstances that both the courts below had come to the conclusion that there has been subletting. It is therefore contended that no grounds are made out to interfere with the impugned judgment. 7. Unless it is shown that the findings are either perverse or unwarranted by the evidence on record, interference under Section 20 of Act 2 of 1965 may not be justified. Both the courts below have found that the landlord has discharged his burden by establishing that the premises involved in the suit is in the possession of strangers. Under such situation, it was for the tenant to show that the commission report does not relate to the premises involved R.C.R. 274//2011. 5 in the case and that he was continuing in occupation of the premises. As rightly pointed out by the learned counsel for the respondent no evidence whatsoever has been produced by the tenant to show that he is continuing in possession. He could have produced his license or such of those documents as would be available with him to show that he continues to occupy the premises. There was no attempt from the side of the tenant to show that the commission report is in respect of some other premises. So also the tenant has no case that he is in possession of any other premises taken on lease from the landlord. It was these factors which had persuaded the courts below to hold that the tenant had parted with possession in favour of a stranger. No grounds are made out to interfere with the impugned judgment. Learned counsel for the revision petitioner prayed that some time may be granted to the revision petitioner to vacate the premises. Learned counsel for the respondents R.C.R. 274//2011. 6 opposed this prayer. Considering the facts and circumstances, a period of six months from 1.11.2011 is granted to the revision petitioner to vacate the premises provided he files an undertaking before the court below that he will unconditionally surrender the premises on or before the expiry of six months from 1.11.2011 and continue to pay the monthly rent till he vacates. PIUS C. KURIAKOSE JUDGE P. BHAVADASAN JUDGE sb.