IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 CRP.No. 1623 of 2002() --------------------------------- RCA.32/1999 of IST ADDL.DISTRICT COURT, KOZHIKODE RCP.190/1992 of PRL.MUNSIFF COURT, KOZHIKODE-I .................... REVN. PETITIONER(S): RSP.2 & SUPPL.RSP.4 & 5/RSP.2 & L.RS OF DECEASED --------------------------------- RESPONDENTS 1. RAJKUMAR CHADDA, ROCKY RUBBER, SILK STREET, KOZHIKODE 1, KERALA. PREMNATH CHADDA (DIED) 2. SHAKTHI CHADDA, S/O. JANGILAL CHADDA, RESIDENT OF 24/78 PANJABI BAGH, NEW DELHI. 3. DEEPAK CHADDA, NO.554 L.MODAL TOWN, JULLUNDER. BY SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE RESPONDENT(S): APPELLANTS/PETITIOERS 2 TO 9: ------------------------- 1. R.M.JAYADEVAN, S/O.LATE R.M.KARUNAKARAN, RESIDING AT KASABA AMSOM AND KARIAKKUNNU DESOM OF KOZHIKODE TALUK. 2. R.M.PRABHAVATHI,S/O.LATE R.M.KARUNAKARAN RESIDING AT -DO- -DO-. 3. R.M.SURESH, S/O.LATE R.M.KARUNAKARAN, RESIDING AT -DO- -DO-. 4. R.M.SUDARSAN, S/O.LATE R.M.KARUNAKARAN, RESIDING AT -DO- -DO-. 5. R.M.GEETHA RANI, D/O. LATE R.M.KARUNAKARAN, RESIDING AT -DO- -DO-. C.R.P. NO.1623/2002 6. R.M.SUSANTH KUMAR, S/O. LATE R.M.KARUNAKARAN, RESIDING AT -DO- -DO-. 7. R.M.VASANTHA, W/O. LATE R.M.KARUNAKARAN, RESIDING AT -DO- -DO-. 8. SON SHYLESH KUMAR, RESIDING AT -DO- -DO-. R1 BY ADV.MR.P.R.VENKETESH THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss C.R. PIUS C. KURIAKOSE & C.K. ABDUL REHIM, JJ. ------------------------------------------------------- CRP. No. 1623 of 2002 ------------------------------------------- Dated this the 4th day of February, 2010 O R D E R Pius C.Kuriakose, J. The alleged sub tenant and the legal heirs of the original tenant are the revision petitioners. In this revision under Section 20 of Act 2 of 1965, they impugn the judgment of the Rent Control Appellate Authority ordering eviction against them on the grounds under Section 11(3), 11(4)(i) and 11(4)(v) in reversal of the order of the Rent Control Court under which the RCP was dismissed completely. The petitioners in the RCP are hereinafter referred to as the landlords, and the respondents in the RCP including the revision petitioners as tenants. The landlords filed the Rent Control Petition seeking eviction invoking the grounds of arrears of rent under Section 11(2)(b), bona fide need for own occupation 11(3), sub-letting 11(4)(i), use of CRP.1623/02 - 2 - the building in such a manner as to destroy or reduce its value or utility materially or permanently under Section 11 (4)(ii) and cessation of occupation under Section 11(4)(v). Since order of eviction is passed for the first time by the Rent Control Appellate Authority only on the grounds of bona fide need for own occupation, sub-letting, and cessation of occupation and since the landlords have not come up in revision against the judgment of the Appellate Authority confirming the refusal of eviction on the other grounds invoked, we, in this revision are concerned only with the case for eviction under Section 11(3), 11(4)(i) and 11(4)(v). 2. The need projected by the landlords was that the landlord No.2, Sri.R.M.Jayadevan needs occupation of the premises for conducting his own business. It was averred that he is carrying on business under the name and style “Sonifirouss Industries”, a small scale industrial unit CRP.1623/02 - 3 - presently in a rented premises situated at Vengeri some ten kilometres away from the petition schedule premises and the city areas of Calicut. The landlord of that building is insisting landlord No.2 to vacate the above premises, since the period of lease governing that premises is over. It was averred that none of the landlords including landlord No.2 are having any vacant building of their own in their possession suitable for conduct of “Sonifirouss Industries”. 3. The landlords' case in the context of the grounds under Section 11(4)(i) was that the first respondent in the RCP M/s Jullunder Duree and Niwar Manufacturing Company, a partnership firm, is the tenant and that the above tenant has sub-let the premises to the second respondent in the RCP one Rajkumar Chadda (revision petitioner No.1 herein). The further allegation is that despite a statutory notice the sub-lease has not been CRP.1623/02 - 4 - terminated. 4. The landlord's allegation in the context of ground of cessation of occupation was that the first respondent/firm is not carrying on any business in the petition schedule building for the last three years and he has no intention to carry on any business therein. It was alleged that the first respondent discharged all its employees from service and has stopped renewal of the Corporation/State licence and has even submitted return before the Sale Tax Authorities showing nil sales. 5. The respondents in the RCP filed a joint counter raising various contentions. The bona fides of the need and the claim under Section 11(3) was stiffly disputed. It was contended that the business of “Sonifirouss Industries” cannot be conducted in the petition schedule premises since the area of the petition schedule premises is not an CRP.1623/02 - 5 - industrial area. It was further contended that the landlords are in actual possession of several buildings which are more than sufficient for carrying on any business or industry that they want to. Though not in so many words, it was contended that the first proviso to sub section (3) of section 11 will operate and the RCP is liable to be rejected. It was also contended that since the landlords are already having several businesses in partnership, the need projected i.e. yet another business is to be conducted in the petition schedule building is not bona fide. The protection of the second proviso to sub section (3) of section 11 was also claimed stating that the partners of the first respondent/firm are depending solely for their livelihood on the income derived from the business and suitable buildings are not available in the locality for them to shift their business to. CRP.1623/02 - 6 - 6. The allegation of sub-lease was stoutly denied. It was contended that the alleged sub lessee is a partner of the first respondent firm and a brother of the Managing Partner of that firm who only executed Ext.A1 lease deed governing the tenancy in question. 7. The allegations in the context of the ground of cessation of occupation were also strongly denied. It was contended that the office of the first respondent is fully functional in a portion of the petition schedule building and that the other portions of the petition schedule building are used as a godown. The Rent Control Court enquired into the RCP and at trial the evidence consisted of the oral testimonies of PW1/landlord No.2 and PW2 and the Advocate Commissioner who had submitted Ext.C1 Commission Report on the basis of a local inspection. The oral evidence on the side of the tenant consisted, that of CRP.1623/02 - 7 - RW1 who is none other than the first counter petitioner in the RCP. Documentary evidence consisted of Exts.A1 to A8, Exts.B1 to B4 apart from Ext.C1 already referred to. Ext.A1 was the koolikachit dt.31/03/96 governing the lease. The Rent Control Court on evaluating the evidence noticed that the case of the landlord in the context of ground under sub section (3) of section 11 was only of shifting the industrial unit by name “Sonifirouss Industries” and that it was in evidence that “Sonifirouss Industries” had been closed. Therefore, according to the Rent Control Court, there is no question of the landlord entertaining a bona fide need to shift the above business of “Sonifirouss Industries”. The Rent Control Court noticed that the alleged sub tenant was a partner of the tenant firm and also that there was close relationship between the Managing Partner of that firm and the alleged sub tenant. In that view of the matter that court CRP.1623/02 - 8 - concluded that the landlord had failed to establish the existence of jural relationship of landlord and tenant as between the first respondent in the RCP and the second respondent in the RCP. Accordingly, eviction was declined on the ground of subletting. 8. Coming to the case for eviction on the ground of cessation of occupation, the Rent Control Court noticed that Ext.C1 report was to the effect that the tenant firm, was in occupation of the premises; that the premises were opened for the Commissioner by the Driver of the Managing Partner of the tenant firm and that the office of the tenant firm was fully functional at the time of visit by the Commissioner. Therefore, according to the learned Rent Control Court, it cannot be said that the tenant had abandoned or ceased to occupy the business continuously more than the statutory period. In that view of the matter, eviction was declined on CRP.1623/02 - 9 - that ground also. 9.Considering an appeal preferred by the landlord, the learned Rent Control Appellate Authority made a thorough re-appraisal of the evidence. That authority noticed that there were justifiable reasons for the landlord (PW1) to discontinue his business of “Sonifirouss Industries” in its present premises which belonged to one K.T.Thomas. It was noticed that PW1 had been forcefully dispossessed from those premises and the local Munsiff's Court had issued an order of temporary injunction restraining the landlord of those premises from taking away the goods belonging to PW1. The Rent Control Court noticed that PW1 was having interest along with others in several other business. But PW1's need to do a business of his own (so that a business of his own will generate income exclusively for him) was found by the Appellate Authority to be a bona fide one. The CRP.1623/02 - 10 - contention under the first proviso to sub section (3) of Section 11 was repelled by the Appellate Authority noticing that there was no evidence to support the contention that PW2 and for that matter the other landlords were in vacant possession of any other building. The Appellate Authority examined the question whether the tenant is entitled to the protection of the second proviso and found that the tenant was practically doing no business in the petition schedule premises and hence, his case that the partners of the tenant firm were mainly depending on the income derived from the business in the scheduled premises is not believable. The Appellate Authority also noticed the evidence in the case that the second respondent was in possession of another building of his own having an area of 7000 sq. ft. as against the petition schedule building which has an area of only 2000 sq. ft. Therefore, the Appellate Authority held that the CRP.1623/02 - 11 - tenants cannot be entitled for the protection of the second proviso. 10. Considering the case under the ground of cessation of occupation, the Appellate Authority practically relied upon Ext.C1 Commission Report itself. It was noticed on the basis of Ext.A1 that the purpose of the lease was conduct of a godown. C-1 report was noticed to be only to the effect that in a small portion of the petition schedule building an office was being maintained by the tenant. That according to the Appellate Authority will not amount to occupation of the business for the purpose for which the same was let out. In order to hold that the building was not being occupied for the purpose for which it was let out inter alia Appellate Authority noticed that a Banian tree was growing on the inside wall of the building and also that the padlock put on the front door of the building had become rusted. It was also CRP.1623/02 - 12 - noticed that practically there was no stock in the godown at the time of inspection and that the tenant was not able to produce any document to show that the premises was being used as a godown. Accordingly, order of eviction was passed on the ground of cessation of occupation. 11. The Appellate Authority relied on Ext.A1 to hold that the tenant of the building is the first respondent in the RCP. It was found that the first respondent is not doing any business and that if at all anybody has possession, it will be the second respondent. According to the Appellate Authority, when the second respondent is seen to be in exclusive possession of the premises, prima facie, a case is made out for existence of sub lease and in the absence of satisfactory evidence on the side of the second respondent for proving the jural relationship between the parties, the case of sub lease alleged by the landlord is only to be CRP.1623/02 - 13 - accepted and ordered eviction on the ground of sub letting. 12. In this revision under Section 20 various grounds have been raised assailing the judgment of the Rent Control Appellate Authority and Smt.Sumathy Dandapani, the learned senior counsel for the revision petitioners addressed arguments on the basis of those grounds. All the arguments of tenants were very seriously resisted by Sri.P.C.Chacko. Smt.Sumathy Dandapani would draw our attention first to the first proviso to sub section 3 of section 11 and also to the evidence in the case. She submitted that it was in evidence that PW1 was in possession of many other buildings in the same city. According to her, the fact that those buildings are already occupied by the landlord and his partners or shareholders for conducting other businesses will not take the case out of the purview of the first proviso to sub section (3) of section 11. According to her, the first CRP.1623/02 - 14 - proviso to sub section (3) of section 11 will apply if the landlord has another building of his own in his possession and such possession need not be vacant possession. 13. Smt. Dandapai would assail the decision of the appellate authority to order eviction on the grounds of subletting and cessation of occupation also. According to her, in order that eviction ground of subletting under Section 11(4)(i) is made out it is necessary that it is established by the landlord on the basis of cogent evidence that there is jural relationship of landlord and tenant between the tenant and the alleged subtenant. In the present case, admittedly the alleged subtenant is a partner of the partnership firm who is the first respondent and tenant is direct brother of the Managing Partner of the firm who only executed Ext.A1 lease deed governing the lease in question. According to Smt. Dandapani, a tenant was not expected to be in physical CRP.1623/02 - 15 - possession of the tenanted premises all twenty four hours of the day. The premises was opened for the commissioner by a representative of the tenant firm. It was reported by the commissioner that though in a small way, an office was being maintained in the premises by the tenant. The finding that the tenant has abandoned the premises is too far fetched, according to Smt.Sumathy. 14. All the submissions of Smt. Dandapani were opposed by Sri.P.C.Chacko. Sri.P.C.Chacko would support the judgment of the Rent Control Appellate Authority on the various reasons stated therein. Sri.Chacko reminded us of the attenuated nature of the jurisdiction under Section 20. According to him, there was no warrant at all for interference with the judgment of the appellate authority within the contours of our jurisdiction which is revisional in nature. CRP.1623/02 - 16 - 15. We have very anxiously considered the rival submissions addressed at the Bar. Since the findings are divergent we have gone through the entire evidence and made a reappraisal of the same. As rightly submitted by Sri.P.C.Chacko, under the statutory scheme, the appellate authority is the final court on facts. When the findings entered by the appellate authority on factual aspects are founded on legal evidence available on record, the revisional court is not ordinarily expected to substitute those findings by its findings. Having scanned the judgment of the appellate authority we are of the view that the findings entered therein regarding the bonafides of the need and regarding the existence of the ground of cessation of occupation are founded on evidence oral, documentary and circumstantial actually available in the case. 16. We are not impressed by the submissions of the learned senior counsel Smt.Sumathi Dadapani that the first CRP.1623/02 - 17 - proviso to sub-section (3) of Section 11 will operate even when the other building envisaged by that proviso is occupied by the landlord for other purposes. It is true that the first proviso does not use the word vacant for qualifying the word possession. But it is clear to our mind that the legislative intendment underlying the first proviso to sub- section (3) is to decline eviction order under sub-section (3) of Section 11 despite positive finding regarding the bonafides of the need, only when the landlord is shown to have a building which can be utilised for the purpose of accomplishing the need projected in the rent control petition. In a situation where the building pointed out in the case to be covered by the first proviso to sub-section (3) of Section 11 is already occupied by the landlord himself for doing some other business or for residence by the landlord himself or by a dependent family member of the landlord or by somebody whom the landlord is bound to accommodate, CRP.1623/02 - 18 - then in our view the first proviso to sub-section (3) of Section 11 will not operate. As for the present case, it became evident that all the buildings pointed out by the tenant for the purpose of the first proviso to Section 11(3) were buildings in which other businesses were being conducted and the appellate authority was perfectly justified in taking the view that the RCP was not liable to fail by virtue of the operation of that proviso. 17. The finding of the Rent Control Appellate Authority that the need projected by the landlord for conducting his business of Sonifirouss Industries is entered on the basis of the evidence adduced by the landlord which was found to be convincing by the Appellate Authority. It is true that the case pleaded in the RCP was one of shifting Sonifirouss Industries from the rented premises where the same was being conducted at that time. But in evidence it was brought out that Sonifirouss Industries had to be CRP.1623/02 - 19 - discontinued by the landlord since the landlord was virtually ejected from that building by the owner of that building who had been demanding surrender even at the time when the RCP was instituted. The Rent Control Court adopted a pedantic approach and dismissed the RCP saying that what has been pleaded is to shift Sonifirouss Industries and now that Sonifirouss Industries is closed down shifting is not possible/necessary. Such a view was taken by the Rent Control Court ignoring the evidence of the landlord that he wants to start it again in his own premises and that he will be able to conduct it profitably in his own premises, viz., the petition schedule premises. According to us it is on a correct appreciation of the evidence that the Rent Control Appellant Authority reversed the finding of the Rent Control Court. 18. So also, we do not find any infirmity, illegality, irregularity or impropriety in the finding of the Rent Control CRP.1623/02 - 20 - Appellate Authority entered in the context of the eviction ground of cessation of occupation. Occupation for the purpose of Section 11(4)(v) when it pertains to a building let out for doing business means occupation by actually conducting business. The Advocate Commissioner's report will establish to the very hilt that in such a sense the petition schedule building was not being occupied by the tenant. Merely posting a care taker in the building will not amount to occupying the building for doing business. If as a matter of fact the building was being occupied for the purpose of doing business, the same could have been proved by the tenant by producing documents since the aspect is capable of documentary evidence. Non-production of any documentary evidence to support the case of the tenant that they are occupying the building, is a circumstance justifying drawal of adverse inference against the tenant. We do not find any infirmity in the finding of the CRP.1623/02 - 21 - appellate authority regarding the existence of eviction ground under Section 11(4)(v). 19. At the same time we find considerable merit in the submission of Mrs. Dandapani that the appellate authority ordered eviction on the ground of subletting without being satisfied regarding the existence of the ground under Section 11(4)(i) of the Act. In order that a ground for eviction under Section 11(4)(i) is established it is necessary that it is proved that either the building in entirety or a portion of the building has been sublet by the tenant or the right of the lessee under the lease in respect of the building or a part of the building is transferred unauthorisedly. In the instant case, the tenant is the partnership firm. Admittedly, the alleged sub-lessee is a partner of the firm. He is in fact brother of the Managing Partner of the firm, who executed the deed of lease representing the firm. Even if it is true that the Managing Partner who is signatory to CRP.1623/02 - 22 - Ext.A1 lease deed does not retain possession of any portion of the building the fact that the alleged subtenant is a partner of the tenant firm will show that the alleged subtenant is entitled in his such capacity to be in possession of the building until the tenant firm is evicted from the building. The relationship between the tenant and the alleged subtenant is not that of tenant and subtenant i.e., that of landlord and tenant nor is it that of the tenant and unauthorised transferee. The evidence on record will not support the conclusion of the appellate authority that the tenant firm is liable to be evicted on the ground under Section 11(4)(i). We vacate that finding of the appellate authority. 20. No serious arguments were addressed before us by the learned counsel for the revision petitioner in the context of the second proviso to sub-section (3) of Section 11. As regards that aspect of the matter also we are of the CRP.1623/02 - 23 - view that the findings entered by the appellate authority are correct being founded on evidence. 21. The result is that the revision is allowed in part. The order of eviction passed by the Rent Control Appellate Authority on the ground of sub letting is vacated. But the order of eviction passed on the ground of bona fide need for own occupation and cessation of occupation are confirmed. The tenant is directed to put the landlord in possession within a period of four months from today. PIUS C.KURIAKOSE, JUDGE C.K. ABDUL REHIM, JUDGE ksv/-