IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 4TH FEBRUARY 2011 / 15TH MAGHA 1932 RCRev..No. 427 of 2005() --------------------------------- RCA.151/2003 of DISTRICT JUDGE/RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.82/1999 of RENT CONTROL COURT AND ADDL.MUNSIFF-I, KOZHIKODE .................... REVISION PETITIONER/IST RESPONDENT/PETITIONER :- --------------------------------------------------------------------------------- SHABANDRI REAL ESTATE LIMITED, A COMPANY REGD. UNDER THE INDIAN COMPANIES ACT, REP. BY ITS EXECUTIVE DIRECTOR, MOHAMMED YUNUS SHABANDRI, S/O.S.ISMAIL SAHIB, AGED 46 YEARS, RESIDING AT PANNIYANAKARA AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS SRI.K.B.SIVARAMAKRISHNAN RESPONDENT(S)/APPELLANTS/RESPONDENTS :- ------------------------------------------------------------------- 1. S.K.SYED UMMAR SAHIB, S/O.LATE S.K.SYED HUSSAIN SAHIB, AGED ABOUT 58 YEARS, BUSINESS, RESIDING AT 10/123, MANGALAMPARAMBU, NAGARAM AMSOM, DESOM, KOZHIKODE TALUK. 2. S.K.SYED HUSSAIN, S/O.S.K.HUSSAIN SAHIB, AGED ABOUT 56 YEARS, BUSINNES, RESIDING AT OPPO. TO OLD K.S.E.B. OFFICE, BUNDER ROAD, BATKAL, KARNATAKA STATE. (DIED) ADDL. R3. NAJUMUNNISA (WIFE) ” R4. SYED NATHIQ (SON), AGED 36 YEARS ” R5. NAAZIRA (DAUGHTER) ” R6. NAGEEBA (DAUGHTER) ” R7. SYED NASRULLAH, SON ” R8. SYED NOOR, SON ” R9. SYED NAYEEM, SON RCRev..No. 427 of 2005 ” R10. SYED NAVEED, SON ” R11. SYED NOAFI, SON ” R12. AFZEA, DAUGHTER ALL RESIDING AT LUCKY HOUSE, 620, IV CROSS BUNDER ROAD, BHATKAL, KARNATAKA, PIN – 581 320. ALL RESPONDENTS 3 TO 12 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED SECOND RESPONDENT VIDE ORDER DT.20.1.2011 IN I.A.No.2372/10 IN RCR 427/2005. ADV. SRI.K.M.FIROZ FOR R1 SRI.N.M.MOHAMMED AYUB FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 04/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------- R.C.R. No.427 of 2005 ------------------------------ Dated this the 4th day of February 2011 O R D E R Pius C. Kuriakose, J. The landlord, a company, is in revision challenging the judgment of the Rent Control Appellate Authority dismissing the rent control petition after setting aside the order of eviction which had been passed by the Rent Control Court on the ground of sub-letting/transfer under Section 11(4)(i) of Act 2 of 1965. The landlord had sought eviction on the ground under Section 11(4)(i) and also under Section 11(4)(ii). As the ground under Section 11 (4)(ii) does not survive in this revision we need consider only the right of the landlord to obtain eviction on the ground of sub-letting. In the RCP, the tenants, R1 and R2 alone were made parties. The names of the alleged sub- R.C.R. No.427 of 2005 -: 2 :- lessees or transferees were not disclosed even. The allegation in the RCP in the context of the ground under Section 11(4)(i) was that contrary to the terms of the agreement, the tenants have sub-let portions of the building to strangers after receiving huge amount by way of premium and on a higher rent. The further allegations are that the hotel business to conduct which the building had been let out has been closed down and at the time of the filing of the RCP new business under the name and style Lucky Collections and Lucky Pardah were being conducted by totally strangers. There is further allegation that the above sub-lease was not terminated despite a notice issued under the proviso to Section 11(4)(i). The 2nd respondent one of the tenants did not contest. The 1st respondent alone filed objections completely denying the allegations regarding sub-lease/transfer. However, in Ext.A5 reply which he had sent to the statutory notice received by him he had stated that the businesses which are being R.C.R. No.427 of 2005 -: 3 :- conducted (Lucky Collections and Lucky Pardah) are a joint ventures. 2. The Rent Control Court on evaluating the evidence adduced by the parties came to the conclusion that the eviction ground under Section 11(4)(i) stood established. Such a conclusion was arrived at by the learned Rent Control Court mainly on the basis of some documents which indicated that a new business by name Stylo Footwear is being conducted in a portion of the petition schedule building by strangers. The learned Appellate Authority under the impugned judgment reversed the findings of the Rent Control Court in the context of the ground under Section 11(4)(i). According to the learned Appellate Authority the landlord has not discharged his burden of showing that the premises have been sub-let and that “exclusive possession” has been transferred by the tenants to strangers. In that view of the matter the learned Appellate Authority set aside the order of eviction and R.C.R. No.427 of 2005 -: 4 :- dismissed the RCP. 3. In this revision under Section 20 various grounds are raised assailing the judgment of the Appellate Authority and Sri.C.P.Muhammed Nias, the learned counsel for the revision petitioner addressed very strenuous arguments on all those grounds. All the submissions of Mr.Niyas were resisted by Mr.K.M.Firoz, the learned counsel for the respondent. As the findings entered by the statutory authorities are divergent, we have made a survey of the entire evidence on record. 4. On a reading of the judgment of the Appellate Authority, we find that one of the reasons which weighed with the learned Appellate Authority for taking a decision against landlord's is that the landlord did not produce a particular document written by the 2nd respondent in the RCP to Batkal Muslim Juma Ath of which he is a member, in which allegedly it was stated that the petition schedule building which had been taken on lease by him and his R.C.R. No.427 of 2005 -: 5 :- brother (the 1st respondent in the RCP) was sub-let to two textile merchants receiving substantial amounts as advance cash amount and daily rent of Rs.1700/- though he claimed to be possessing the same. It was submitted by Mr.Nias that the landlords filed an application before the Rent Control Court for summoning the production of the original of that letter from the Juma Ath. But the Secretary of the Juma Ath on receiving summons filed a statement to the effect that the original of the letter is not traceable. Mr.Nias submitted that his client got as a copy of that letter (translation of the original version in Urudu). He placed the same for our perusal. 5. When the contention of Mr.Firoz was drawn by us to the evident situation that a footwear business by name Stylo Footwear is being conducted in a portion of the ground floor of the petition schedule building which is a double storeyed building, the learned counsel submitted that an order of eviction cannot be passed on the basis of R.C.R. No.427 of 2005 -: 6 :- alleged transfer or sub-lease to M/s.Stylo Footwear as such a cause of action does not find a place in the statutory intimation notice issued under the proviso to Section 11 (4)(i) or in the RCP. The alleged sub-lease to the conductors of Stylo Footwear if at all can be a fresh cause of action and cannot be a ground for ordering of eviction in the present proceedings, according to Mr.Firoz. 6. It is trite and that rules of pleadings are not to be meticulously adhered to in rent control proceedings. The question to be considered is whether for want of pleadings, any prejudice has been caused to the opposite party. On going through the rent control petition, what we find is that the landlord has alleged that possession of a portion of the petition schedule building that possession has been parted with by the tenant in favour of strangers. Section 21 of Act 2 of 1965 provides that any order passed against a tenant will be binding on the sub-tenant and that sub-tenant need not be made a party to the rent control proceedings in the R.C.R. No.427 of 2005 -: 7 :- absence of any allegation for the tenant that there is collusion. In the nature of the pleadings raised in the present case the non impleadment of the alleged sub-lease cannot be fatal to the rent control proceedings. 7. On a reading of the judgment of the Appellate Authority, it appears to us that the learned Appellate Authority is of the opinion that in order that eviction ground under Section 11(4)(i) is established the landlord has the burden to prove that there is sub-lease (the existence of landlord-tenant relationship) between the tenant and the alleged sub-tenant, apart from the obligation to prove that exclusive possession of the building has been transferred by the tenant unauthorisedly to the alleged sub-tenant. A careful reading of Section 11(4)(i) will show that in order that the ground of eviction under that provision is established it is sufficient that either the existence of a landlord-tenant relationship between the tenant and sub- tenant is established or unauthorised transfer of either the R.C.R. No.427 of 2005 -: 8 :- entire building or a portion of a building is established. One of the circumstances relied on by the learned Rent Control Court for its conclusion that Stylo Footwear is being conducted in a portion of the building by strangers, was Ext.A11 letter, paper containing the telephone numbers of total strangers. The learned Appellate Authority also noticed Ext.A11. According to that Authority it will not be safe to conclude on the basis of Ext.A11 alone that strangers are in possession. 8. Having made a thorough reappraisal of the evidence and the pleadings we feel that the question whether the eviction order is liable to be passed against the respondent in this case under Section 11(4)(i) requires to be considered afresh by the Rent Control Court. The commencement of Stylo Footwear is an event subsequent to the initiation of the rent control proceedings. If Stylo Footwear is being conducted by anybody other than the respondents in the RCP the same will definitely amount to a R.C.R. No.427 of 2005 -: 9 :- ground for eviction order under Section 11(4)(i) as the respondent did not have a case that it is with authorisation from the landlord that Stylo Footwear is being conducted. As rightly argued by Mr.Firoz the conduct of Stylo Footwear in a portion of the building is not averred in the rent control proceedings. We feel that as the matter is going back to the Rent Control Court the landlord should be permitted to amend their pleadings. We are therefore inclined to remit the matter back to the Rent Control Court giving opportunity to the landlord to amend the pleadings and giving opportunity to both sides to adduce further evidence including production of the copy of the letter sent by 2nd respondent in the RCP to the Batkal Juma Ath. 9. We notice another important aspect of the matter. The building having a plinth area of 3000 sq.feet on S.M.Street at Calicut is fetching to the landlord only a paltry rent of Rs.2,000/- per mensem. According to us if the building is let out today, the same will fetch several times R.C.R. No.427 of 2005 -: 10 :- the above amount. If the allegation of sub-lease or transfer is true, the tenant must be receiving substantial amounts from the alleged sub-lease. We are therefore, inclined to refix the rent with effect from 1.3.2011 at Rs.10,000/- per mensem. Such refixation will be tentative and it will open to either party to move to Rent Control Court for regular fixation of fair rent under Section 5. Till the fair rent is fixed, respondents shall pay rent at the rate of Rs.10,000/- per mensem. The result of the above discussion is as follows:- The judgment of the Rent Control Appellate Authority and order of the Rent Control Court are set aside to the extent the same pertains to eviction on the ground of sub-letting under Section 11(4)(i). The RCP is remitted to the Rent Control Court. That Court is directed to permit the landlord to amend the pleadings by incorporating specific averments regarding the nature of the sub-lease or transfer. If pleadings are amended by the landlords, tenants should R.C.R. No.427 of 2005 -: 11 :- be given opportunity to raise counter pleadings. Both sides should be permitted to adduce further evidence. It is open to the landlord to produce a copy of the letter issued by the 2nd respondent to the Batkal Juma Ath as an item of evidence on their side. The learned Rent Control Court will take a fresh decision on the basis of the evidence on record and the evidence which may come on record at the earliest. As the RCP is of the year 1999, the learned Rent Control Court is directed to expedite matters and ensure that fresh orders are passed atleast within the statutory time frame of four months. Parties will enter appearance before the Rent Control Court on 28.2.2011. PIUS C. KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. Jvt