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 5TH JANUARY 2009 / 15TH POUSHA 1930 RCRev..No. 288 of 2008() ------------------------ (RCA.NO.11/06 OF DISTRICT COUR, ALAPPUZHA RCP.NO.42/04 OF RENT CONTROL COURT, ALAPPUZHA) REVISION PETITIONER/ APPELLANT/COUNTER PETITIONER ------------------------------------------------ K.DHARANEENDRAN, AGED 62 YEARS, S.N.ELECTICALS, A.K.B.E.F. BUILDING, WEST OF D.C.C. OFFICE, MULLACKAL, ALAPPUZHA. BY ADV. SRI.K.V.SADANANDA PRABHU RESPONDENT(S): RESPONDENTS/APPLICANT & 2ND COUNTER PETITIONER ----------------------------------- 1. ALL KERALA BANK EMPLOYEES FEDERATION, ALAPPUZHA DISTRICT COMMITTEE,A.K.B.E.F. BUILDING, MULLACKAL, ALAPPUZHA REPRESENTED BY ITS SECRETARY. 2. P.SETHU, AGED 33 YEARS, SETHU SDANAM, PALLATHURUTHY MURI, PAZHAVEEDU VILLAGE, ALAPPUZHA. ADV. SRIR.AZAD BABU FOR CAVEATOR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & M.C.HARI RANI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No.288 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of January, 2009 ORDER Pius.C.Kuriakose, J. The tenant against whom order of eviction has been passed concurrently by the rent control court and the appellate authority on the ground of sub letting under Section 11(4)(1) and additional accommodation under Section 11(8) is the revision petitioner. When this RCR came up for admission, Sri.R.Azad Babu who had lodged a caveat on behalf of the respondent landlord took notice and we have heard Sri.K.V.Sadananda Prabhu, learned counsel for the petitioner and Sri.R.Azad Babu at length. 2. The allegation of the landlord in the context of ground under Section 11(4)(1) was that the first respondent in the RCP is the tenant and that the building had been let out to him for the conduct of business of a firm by name S.N.Electricals and that contrary to the terms of the lease, he sub let/ transferred the premises to the second respondent- Sri.P.Sethu. The case of the landlord in the context of the RCR.No.288/08 2 ground under Section 11(8) was that the landlord is the the All Kerala Bank Employees Federation, Alappuzha represented by its Secretary and that the office of the association and a number of other associations affiliated to it and even the cultural wing of the association are functioning from other rooms in the larger building, already under the possession of the landlord and that the landlord requires the petition schedule building also for additional accommodation so that the activities of the landlord association and its affiliated associations can be conducted by utilising the petition schedule building also. It was specifically averred that the landlord intends to modify the building to convert it as a hall to accommodate more members and that the landlord intends to provide other amenities - latrine, washing space etc. after getting the possession of the building. 3. Apart from grounds under Section 11(4)(1) and 11(8), the landlord has sought eviction on the ground of arrears of rent and also under section 11(4)(2). The ground of arrears of rent and the ground under Section 11(4)(2) no longer survive in view of the discharge of the entire arrears of rent during the pendency of the proceedings and in view of the submission of the landlord's counsel before the appellate RCR.No.288/08 3 authority that the ground under Section 11(4)(2) is not pressed. We therefore are not referring to the case of the petitioners regarding those two grounds. 4. Considering the evidence adduced by the parties, the rent control court concluded that the first respondent tenant has transferred exclusive possession of the building in favour of the second respondent Sri.P.Sethu and that Sri.P.Sethu is conducting his own proprietary business by name S.N.Electric Works. To arrive at such a finding, the court relied mainly on Ext.A5 letter which had been sent by the second respondent to the landlord under his own handwriting in the letter paper of S.N.Electric Works wherein the signatory to the letter had described himself as the proprietor of S.N.Electric Works. The non-examination of CP2 Sri.P.Sethu as a witness was also noticed by the rent control court as a circumstance which probabilises the landlord's version regarding sub lease. The court also relied on Ext.C1 Commissioner's report, Ext.C1(a) Mahazer and Ext.C1(b) sketch. Relying on the Commissioner's report and oral testimony of PW1 - the secretary of the landlord organisation at the relevant time, the court found that the claim under Section 11(8) for additional accommodation RCR.No.288/08 4 was bonafide. Considering the question of comparative hardship, the court found that the advantages which will enure to the landlord on getting eviction will out weigh the hardships which the first respondent tenant may sustain in the event of eviction. In this context, the court relied on its finding on the ground of sub letting and took the view that in a situation where tenant has parted with possession of the building in favour of somebody else, the tenant cannot have a legitimate complaint that he will sustain hardship on account of eviction. The appellate authority re-apprised the evidence and concurred with the findings of the rent control court and dismissed the appeal. 5. Sri.K.V.Sadananda Prabhu, learned counsel for the petitioner would assail the findings of the courts below forcefully. As regards the ground of additional accommodation, the learned counsel argued that the case of the landlord was that the schedule room which has got a size of less than 400 sq. ft. is required for conducting the general body meetings of the petitioner association which has got a strength of 2000. This case was implicitly impossible and therefore apparently the claim was not bona fide. As regards the grounds of subletting, the learned counsel submitted that the conclusions are RCR.No.288/08 5 founded on Ext.A5 letter alone. The close relationship between the tenant and the alleged subtenant – uncle and direct nephew was ignored by the courts below. The tenant's version that the alleged subtenant was his own nephew and that rent was tendered and Ext.A5 was written by the alleged subtenant on his behalf should have been accepted by the courts below. 6. We have anxiously considered the submissions addressed at the Bar. The jurisdiction of this court under Section 20 of the Act of 1965 though wider than the regular civil jurisdiction under Section 115 is nevertheless a revisional jurisdiction. This court is not expected to make a de novo re-apprisal of the evidence. What this court is expected is only to satisfy that the findings which are concurrently entered by the courts below are based on evidence. In deference to the persuasive submissions of Sri.K.V.Sadananda Prabhu. we went through the pleadings and to certain items of evidence particularly Ext.A5. 7. Having considered the judgment of the rent control appellate authority which under the scheme of the Rent Control Act is the final court on facts, we are of the view that findings of that authority that the revision petitioner is liable to the evicted on the RCR.No.288/08 6 ground of sub letting and additional accommodation are based on materials. At any rate we do not find any warrant for interfering with these findings. The argument of the learned counsel that the need projected by the landlord is to conduct general body meetings of an association having a strength of 2000 in the schedule building which has an area of less than 400 sq. ft. is incorrect. The need as pleaded by the landlord has been correctly stated by the authorities below in their judgments. The need was one of additional accommodation after making suitable modifications not only to the schedule building but also to the entire larger building of which the schedule building is a part. Similarly, it is not correct to say that the finding on sublease is based on Ext.A5 alone. Ext.A5 has to be appreciated in the context of the conduct of the parties prior to the same. Sri.Sethu, the alleged sub-lessee would send rent by money order in his own name to the landlord. Suspecting mischief the landlord refused to accept the money order which was sent by somebody who was not his tenant. It is thereafter that Ext.A5 was sent enclosing a pay order for the rent in arrears. Even if the learned counsel's argument that the letter paper belonged to the tenant is accepted, then also there is no explanation for RCR.No.288/08 7 CPW-2 Sethu writing the letter under his own handwriting describing himself as the proprietor of the business and holding himself out as the tenant. 8. On conclusion of arguments, we informed the learned counsel of our decision not to interfere with the judgment of the rent control appellate authority. Thereupon, Sri.K.V.Sadananda Prabhu would request for one year's time for giving peaceful surrender of the premises. Sri.R.Azad Babu would submit that since the landlord petitioner is badly in need of additional accommodation, granting more than the normal period will not be justified. 9. Considering the rival submissions in the context of grant of time, we feel that in view of the circumstances which attend on this case, the petitioner can be granted six months time to evict the premises subject to conditions. Accordingly RCR will stand dismissed. The proceedings for execution will stand put off by six months from today subject to the following conditions : 1) Petitioner submits an undertaking before the execution court in the form of an affidavit stating that the petitioner will surrender peaceful possession of the petition schedule building till 15/07/2009. RCR.No.288/08 8 2) The petitioner shall continue to pay the rent which falls due in respect of the rooms till he surrenders. But it is made clear that such payment will not confer any special rights over the petitioner. 3) The affidavit as directed above shall be filed by the petitioner within three weeks from today. If the execution court notices any affidavit filed by the petitioner in the lines indicated above, that court shall adjourn the EP to 16th of July 2009. PIUS.C.KURIAKOSE JUDGE M.C.HARI RANI JUDGE sv. RCR.No.288/08 9