IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 CRP.No. 2006 of 2002() ---------------------- RCA.59/1999 of II ADDL.DISTRICT COURT,ERNAKULAM RCP.121/1995 of I ADDL.M.C.,ERNAKULAM .................... REVN. PETITIONER: (APPELLANTS-PETITIONERS): ------------------------------------------- 1. CHANDRASEKHARAN, SON OF KUTTAN NAIR, PARAYELIL PUTHEN VEETTIL, PARAVOOTHARA MURI, PARAVOOR VILLAGE. 2. AMBIKA DEVI, DAUGHTER OF KUTTAN NAIR, PARAYELIL PUTHEN VEETTIL, PARAVOOTHARA MURI, PARAVOOR VILLAGE. 3. USHA B.PANICKER, DAUGHTER OF KUTTAN NAIR PARAYELIL PUTHEN VEETTIL, PARAVOOTHARA MURI, PARAVOOR VILLAGE. 4. MURALEEDHARAN, SON OF KUTTAN NAIR, PARAYELIL PUTHEN VEETTIL, PARAVOOTHARA MURI, PARAVOOR VILLAGE. BY ADV. SRI.T.K.VENUGOPALAN RESPONDENTS: (RESPONDENT-RESPONDENT): ------------------------------------- JOSEPH, SON OF THOMMAN, THOPPIL, PONEKKARA, EDAPPALLY NORTH VILLAGE, ELAMAKKARA P.O., KOCHI-26. (DIED. L.RS. IMPLEADED) ADDL.R2: KUNJUMON, S/O. JOSEPH, THOPPIL, PONAKKARA, EDAPPALLY NORTH VILLAGE, ELAMAKKARA P.O., KOCHI-26. 3. PIUS, S/O. JOSEPH, DO. DO. 4. JOSEY, S/O. JOSEPH, DO. DO. (ADDL. R2 TO R4 IMPLEADED AS LRS OF DECEASED RESPONDENT AS PER ORDER DATED 2.7.2007 IN IA 3770/2004) BY ADV. SRI.S.B.PREMACHANDRA PRABHU FOR ADDL.R2 SRI.G.SREENIVASA PRABHU FOR ADDL.R2 SRI.S.B.PREMACHANDRA PRABHU FOR R4 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/06/2008, THE COURT ON 25/06/2008 PASSED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No.2006 of 2002 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of June, 2008. O R D E R Raman, J. This is a revision against the order dismissing an application filed by the petitioners/landlords seeking eviction of the tenanted premises and confirmed in appeal. 2. Eviction was sought under Sections 11(2)(b), 11(3), 11(4)(i) and 11(4)(iv) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The Rent Control Court dismissed the application under Section 11(2)(b) of the Act, but reversed in appeal by the Appellate Authority. However, the Appellate Authority confirmed the order of dismissal under Sections11(3), 11(4)(i) and 11(4)(iv) of the Act. 3. The bonafide need alleged in the petition is for starting a business by the 4th petitioner. It was pleaded that he has no other business of his own. But it was proved on evidence that he was carrying on an agency business in North Parur. This piece of evidence appreciated by the courts below to bely the contention of the landlord seeking eviction on the ground of bonafide requirement. On facts and circumstances and based on evidence CRP 2006/2002 -2- on record, we do not think that the above finding is in any way perverse. No interference is called for in this regard. 4. Under Section 11(4)(ii) of the Act, it is alleged that the tenant has caused, by user of the building, severe damages to the building. On evidence it has been proved that the building itself is in a dilapidated condition and there is no acceptable evidence to show that the tenant has contributed anything for the present position of the building. Admittedly, it is an old building and by efflux of time it has become in a dilapidated condition. In the absence of anything to show that the tenant has done anything to cause any damage to the building, the finding of the court below declining to grant eviction on this ground, is also not liable to be interfered with. 5. The only other ground which requires consideration is the ground urged under Section 11(4)(i) of the Act alleging sub lease. The Rent Control Court found that there was no proper notice. The Appellate Authority however reversed this finding and found that there is sufficient notice as contemplated under law. As per the proviso to Section 11(4)(i) of the Act, what is required to be done is to send a notice to the tenant alleging sub lease, so that he could set right the contravention by terminating the arrangement within a period of 30 days. In this case, it has been amply proved that notice had been sent, but was not claimed by the tenant. CRP 2006/2002 -3- Therefore, the disclaimer of the notice by the tenant implies his knowledge about the notice and hence we agree with the finding of the Appellate Authority that there was proper notice. 6. It was alleged by the landlord in the notice as well as in the pleading that one George and one Noushad are in occupation of the building. The tenant in his written objection only denied the alleged sub lease but he did not come forward with any explanation as to their presence in the premises and what was the jural relationship, if any. But while examining RW.1, he has stated that they are his employees. If so, the presence is not disputed. Thus, their relationship with the petitioner is to be proved by further evidence and that they are actually employees and there is no sub lease as alleged in the petition. Therefore, we find the finding of the Appellate Authority as well as the Rent Control Court that the landlord has not discharged his burden of proving transfer of possession, is not correct. In this regard, learned counsel for the appellants placed reliance on a Division Bench decision of this court in Vipinachandran v. Xavier (2005 (4) KLT 850) wherein it has been held that the burden is entirely on the tenant to disprove the allegation of sub-lease when presence of the alleged sub-lessee is proved. In this case, the presence of the two persons named in the petition is proved by the admission of R.W.1. Then the jural relationship between the tenant and the alleged sub-lessees is a CRP 2006/2002 -4- matter to be proved by adducing evidence by the person who had the knowledge of the same. The arrangement, if any, between the tenant and those two persons is a matter exclusively within the knowledge of the tenant only. In these circumstances, we think, a second look is required on the question as to whether there was any sub-lease as alleged in the petition. Therefore, we remand the matter to the Rent Control Court for a fresh finding on the above question giving an opportunity to both sides to adduce additional evidence, if any, in this regard. Accordingly, the appeal is allowed by way of remand on the short question to consider whether there is any ground to order eviction on the ground of sub-lease under Section 11(4) (i) of the Act. The findings on all other issues are confirmed. The parties shall appear before the Rent Control Court on 23.7.2008. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/ CRP 2006/2002 -5- P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - C.R.P.No.2006 of 2002 - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 2008.