IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 RCRev..No. 273 of 2009() ------------------------ RCA.92/2008 of RENT CONTROL APPELLATE AUTHORITY , VADAKARA RCP.51/2006 of RENT CONTROL COURT, NADAPURAM .................... REVISION PETITIONER/APPELLANT IN RCA/2ND RESPONDENT IN RCP -------------------------------------------------------- V.K.MURALIMOHAN, S/O.BALAKRISHNAN ADIYODI, VELLUR AMSOM & DESOM KODENCHERY PO, PURAMERI VIA, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.P.K.BEHANAN RESPONDENT(S)/RESPONDENTS/PETITIONER IN RCP: --------------- 1. KAVUKKAL MUKKADANKNDI MOIDU S/O.ALUVA HAJI, KUMMANCODE AMSOM, NADAPURAM DESOM, VATAKARA TALUK, KOZHIKODE PIN 673 504, REPTD BY POWER OF ATTORNEY HOLDER PUNNOTHAMKANDIYIL ABDUL RAFEEQ,S/O.MAMMU BUSINESS,KUMMANCODE AMSOM,NADAPURAM DESOM VATAKARA 2. MALOL KRISHNAN, S/O.AMBUTTI AGRICULTURIST, VELLUR AMSOM AND DESOM VATAKARA TALUK,KOZHIKODE DISTRICT. ADV. SRI.K.LAKSHMINARAYANAN THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11/12/2009, ALONG WITH RCR NO. 274 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NO.3382/2009 IN RCR NO. 273/2009 DISMISSED 11/12/2009 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- K.S.SURENDRA MOHAN, JUDGE. PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.Nos.273 & 274 OF 2009 ------------------------ Dated this the 11th day of December, 2009 O R D E R Pius C.Kuriakose, J. The alleged sub tenant is in revision. R.C.R. No.273/2009 is directed against the judgment in RCA No.92/2008 which in turn was directed against the order in RCP No.51/2006. RCR No.274/2009 is directed against the judgment in RCA No.93/2008 which in turn was directed against the order in RCP No.36/2007. The parties will be referred to as the landlords, the tenant and the sub tenant. RCP No.36/2007 was filed by the landlord alleging that the tenant, the first respondent in the RCP, has sub let the building unauthorisedly to the second respondent in the RCP viz. the revision petitioner herein. The allegation was that the tenant, to whom the building was let out on the strength of Ext.A1 registered rent chit, parted with possession of the building in favour of the alleged sub tenant and that he went abroad to take up an employment. The further averment was that in spite of the statutory intimation notice under the proviso to clause (i) of sub section (4) of Section 11, sub lease RCR.Nos.273 & 274/2009 2 was not terminated. The contention of the first respondent tenant was that since he secured employment abroad, he put the second respondent in possession and that he is no longer interested in the petition schedule building. According to him, it was not necessary to pass any order of eviction against him since he is already out of possession. The alleged sub tenant revision petitioner contended that in the beginning the building was let out by the landlord to the tenant by virtue of Ext.A1 rent chit. But thereafter the tenant secured employment in abroad and, therefore, the tenant inducted the writ petitioner and one Bhaskaran into the petition schedule building with the concurrence of the landlord. It was further contended that they executed Ext.B1 rent chit in favour of the landlord and the tenancy ever since continued as direct tenancy in favour of the alleged sub tenant and his partner Sri.Bhaskaran. Bhaskaran resigned from the partnership later and tenancy is therefore continuing in favour of the alleged sub tenant only. The landlord has received rent from the alleged sub tenant and thus by adornment and acquiescence the arrangement has become authorised and he is not liable to be evicted. RCR.Nos.273 & 274/2009 3 2. During the pendency of RCP No. 36/2007 the landlord came back to Nadapuram and he filed RCP No.51/2006 invoking ground of bona fide need for own occupation. In this RCP also, the first respondent did not raise any contest. But the alleged sub tenant contended that the RCP is not maintainable in view of the pendency of the earlier RCP and that the need is not bona fide and that he is entitled to the protection of the second proviso to sub section (3) of Section 11. Both the RCPs were jointly tried by the Rent Control Court and at trial the evidence on the side of the landlord consisted of Exts.A1 to A6 and the oral evidence of PW1. On the side of the alleged sub tenant the same consisted of Exts.B1 to B21 and the oral evidence of RW1. The Rent Control Court on evaluating the evidence concluded that the alleged sub tenant was in possession as a sub lessee and that as an unauthorised sub lessee, the Rent Control Court ordered eviction on the ground under clause (i) of sub section (4) of Section 11. It was found that the need projected by the landlord is bona fide and it was also found that the alleged sub tenant was unsuccessful in proving that he is entitled to the protection of the second proviso to sub section (3) of Section 11. RCR.Nos.273 & 274/2009 4 3. Two appeals were preferred by the alleged sub tenant. Both of them were dismissed by the impugned common judgment by the Rent Control Appellate Authority. In view of the finding by the authorities below that the revision petitioner's status in the building is of a sub tenant, we wanted Sri.P.K.Behanan, learned counsel for the revision petitioner to address first on the question of sub lease. Accordingly, he addressed us elaborately. Our attention was drawn by him to Ext.B1 and also to Exts.B18, B19 and B20. The learned counsel submitted that the petition schedule premises are situated very near to the residential premises of the landlord and the very fact that the landlord did not initiate any action for evicting the revision petitioner till 2007 itself is indicative of the truth that the revision petitioner was holding on the basis of direct rental arrangement as evidenced by Ext.B1, B18 and B20. 4. All the submissions of Sri.P.K.Behanan were resisted by Sri.K.Lakshminarayanan, who drew our attention to the judgment of this court in Varghese Ittoop v. District Judge (1991 (2) KLT 394) and the judgment of this court in Kochu Thressia v. Albert (2007 (4) KLT Page 1) and also the judgment of the RCR.Nos.273 & 274/2009 5 Supreme Court in John Chandy & Co. (P) Ltd. v. John P.Thomas(2002 (2) KLT 220(SC). We have very anxiously considered the rival submissions addressed at the Bar. We have gone through the judgment of the Rent Control Appellate Authority which under the statutory scheme is the final court on facts. The first question to be decided in this case is as to what is the jural status of the revision petitioner in the petition schedule premises whether that of unauthroised sub lessee or that of tenant directly under the landlord by virtue of Ext.B1. As rightly noticed by the Rent Control Court and the Appellate Authority, Ext.B1 is an unilateral lease deed and there is no evidence on the basis of which it can be held that the landlord has accepted Ext.B1. Exts.B18 to B20 which are put in evidence by the revision petitioner to prove the acceptance of Ext.B1 by the landlord, will only show that the landlord has received the rent for certain periods. Exts.B18 to B20 receipts do not even mention the name of the person who made the payment. Ext.B18 to B20 also in our view will not advance the case of the revision petitioner. True, Ext.B1 will indicate that the revision petitioner came into possession of the building some 20 years RCR.Nos.273 & 274/2009 6 prior to the institution of the RCP. The same is a unilateral rent chit. The question is whether due to long silence on the part of the landlord it can be held that the landlord has acquiesced at the arrangement made by the first respondent in favour of the revision petitioner. The issue is covered against the revision petitioner by the judgment cited at the Bar by Sri.Lakshminarayanan. In fact, it is keeping in mind those judgments that the Rent Control Court and the Appellate Authority concluded that the revision petitioner is liable to be evicted on the ground of sub lease. We do not find any irregularity, impropriety or illegality warranting invocation of the revisional jurisdiction for up setting the finding concurrently entered by the Rent Control Court and the Appellate Authority. 5. The question, which now survives is whether it necessary for us to consider the merit of the grounds raised by the revision petitioner regarding the order of eviction passed under Section 11(3) including the finding of the authorities below that the revision petitioner does not entitle for the protection of the second proviso to sub section (3) of Section 11. We are in respectful agreement with the view expressed by this court in RCR.Nos.273 & 274/2009 7 Varghese Ittoop's case (supra) that the sub tenant who is liable to be evicted under clause (i) of sub section (4) of Section 11 will not qualify as a tenant entitled to the statutory protection provided under the various provisos of the Rent Control Act and therefore according to us the challenge made by the revision petitioner, who is only a sub tenant against the order of eviction passed on the ground of sub section (3) of Section 11 is not maintainable. 6. As his last plea, Sri.Behanan, learned counsel for the revision petitioner requested that the revision petitioner be granted at least one year's time to surrender the premises. Sri.Lakshiminarayan very stiffly opposed the above request of Sri.Behanan submitting that the status of the revision petitioner being what it is, he is not entitled even ask for time. We are of the view that on the facts and circumstances, which attend on this case, there is justification for granting reasonably long period to the revision petitioner to surrender the premises. Hence as we dismiss these revision petitions, we direct the Execution Court not to order and effect delivery of the petition schedule building subject to the following conditions; RCR.Nos.273 & 274/2009 8 The revision petitioner shall file an affidavit before the Execution Court within three weeks from today undertaking to give peaceful surrender of the petition schedule building to the respondent/landlord on or before 31/10/2010. It will also be undertaken through the same affidavit that occupational charges at the rate of Rs.500/- per month will be paid by way of damages for use and occupation to the respondents on the first of every month commencing from today till 31/10/2010. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk