IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 RCRev..No. 203 of 2004() ------------------------ RCA.52/1999 of I ADDL. DISTRICT COURT, TRIVANDRUM RCP.2/1997 of PRL.MUNSIFF COURT,NEDUMANGAD .................... REVISION PETITIONER(2ND RESPONDENT/2ND RESPONDENT) ---------------------------------------------------------------------- KERALA B.HARIDAS, ADVOCATE, NEDUMANGAD. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): APPELLANT & 1ST RESPONDENT/PETITIONER & 1ST.RESP. ---------------------------------------------------------------- 1. JAYAPRABHA TEVALLIKULANGARA HOUSE, PALODE WARD, KOLLAM TALUK, KOLLAM DISTRICT FROM GEETHA BHAVA, THEKKUMKARA MURI, NEDUMANGAD VILLAGE. 2. P.PARAMESWARA KAIMAL (ADVOCATE), VANCHIYOOR, TRIVANDRUM. ADV. SRI.M.C.SEN, SENIOR ADVOCATE SRI.M.P.SREEKRISHNAN SRI.S.PRAKASH SMT.SHAHANA KARTHIKEYAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------------ R. C. R. No.203 of 2004 & Cross Objection No.122 of 2004 ------------------------------------------------ Dated this the 7th day of October, 2009 ORDER Pius C. Kuriakose, J The second respondent in the Rent Control Petition, the alleged sub tenant is in revision. The first respondent/landlady sought eviction on the ground of arrears of rent under Section 11(2)(b); bona fide own occupation under Section 11(3) and subletting under Section 11(4)(i). The eviction was declined by the Rent Control Court and the Appellate Authority concurrently on the ground of arrears of rent. The need projected in the context of Section 11(3) was that the landlady's husband is a retired Doctor and he wants to put up a new commercial building after R. C. R. No.203 of 2004 -2- demolishing the existing building which is an old one and utilise a portion of that building for running a hospital and the other portions of the new building as a commercial complex. The allegation of the landlady in the context of ground of sub lease was that the second respondent in the revision is the tenant (a lawyer presently practicing at Thiruvananthapuram) and that he has unauthorisedly sublet or transferred the building to the revision petitioner/another lawyer. The tenant claimed the protection of the second proviso to sub section 3 of section 11. The Rent Control Court dismissed the RCP completely. The Appellate Authority, however, under the impugned judgment has allowed the petition under sub Section 3 of Section 11. It is found that the need projected by R. C. R. No.203 of 2004 -3- the landlady is a bona fide one and that the petition is not liable to fail on account of the first or the second proviso to sub Section 3 of Section 11. Coming to the ground of subletting, the Appellate Authority found that the second respondent in the RCR is the tenant and that the revision petitioner is a sub tenant. However, the Appellate Authority did not become inclined to order eviction on the ground of subletting on the reason that though the subletting/transfer was in 1977, the landlady did not take any action for evicting the revision petitioner on the ground of sublease till 1997. In other words though not in so many words, it was found by the Appellate Authority that the landlady has acquiesced at the sublease. This revision under Section 20 is filed impugning the R. C. R. No.203 of 2004 -4- decision of the Appellate Authority ordering eviction under Section 11(3). The landlady has filed a cross objection challenging the judgment of the Rent Control Appellate Authority declining eviction on the ground of subletting and arrears of rent. 2. We shall first deal with the ground of arrears of rent. The Rent Control Court declined eviction on the ground of arrears of rent on the reason that statutory notice intimating the tenant of the default in the matter of payment of rent was not issued to the revision petitioner which according to that court is tenant. It is not disputed that such a notice was issued to the second respondent in the RCR who is now found by the Appellate Authority to be the tenant. We do not find any infirmity with the finding of the Appellate R. C. R. No.203 of 2004 -5- Authority that the second respondent in the RCR is the tenant. That being so, the notice sent to the second respondent in the RCR is more than sufficient to maintain the petition for eviction on the ground of arrears of rent. It is practically admitted by the tenant that he defaulted payment of rent from April, 1977. He has a contention that he has paid total amount of Rs.685/- to the local authority towards property tax which was otherwise payable by the landlady. It is not disputed that the contract rent till April, 1985 was Rs.30/- per mensem and that thereafter, the same was enhanced to Rs.40/- per mensem. Calculating the arrears of rent that way the total rent in arrears till 31/03/2010 will come to Rs.14,880/-. Any tenant will be liable to pay the above amount together with R. C. R. No.203 of 2004 -6- statutory interest at the rate of 6% per annum from the date of respective default for an order under section 11(2)(b). We, however, are not inclined to pass an order under Section 11(2)(b) against the revision petitioner who is found to be a sub tenant. 3. We shall now deal with the case for eviction on the ground of subletting. As already stated we do not find any infirmity with the finding of the Rent Control Appellate Authority which under the statutory scheme is the final court on facts, that the status of the revision petitioner is only that of a sub tenant and that the second respondent in the revision petition is the tenant. The Appellate Authority declined eviction on the ground of subletting on the reason that the landlady acquiesced at sublease/transfer. But, on going through the pleadings raised by the revision R. C. R. No.203 of 2004 -7- petitioner, we find that he had not raised plea of acquiescence by the landlady so as to dis-entitle the landlady to evict the revision petitioner on the ground of subletting. In fact, the revision petitioner's definite plea was that his status is not that of a sub-tenant and that it is as that of a tenant directly under the landlady, after the second respondent in the RCR surrendered the premises. As rightly noticed by the Appellate Authority not even an iota of evidence was adduced by the revision petitioner to prove his case that the second respondent in the RCR surrendered the building. In the absence of plea raised by the revision petitioner regarding acquiescence, the Appellate Authority was not justified in declining eviction on the ground of subletting. Allowing the cross objections we order eviction against the revision petitioner and the second respondent in the RCR on R. C. R. No.203 of 2004 -8- the ground of subletting under section 11(4)(i). 4. As for the order of eviction passed under Section 11(3), we are of the view that all the findings entered into in that regard by the Appellate Authority are founded on evidence which was available on record. According to us, the Appellate Authority has kept the relevant statutory provisions and binding judicial precedents governing the tenant's eligibility for eviction under Section 11(3) in mind. When the need projected is to put up a new building after demolishing the existing building, the need is one under Section 11 (3) and not under Section 11(4)(iv). As for the order of eviction passed by the Appellate Authority on the ground under sub-section (3) of Section 11, we are of the view that all the findings entered into by the Rent Control Appellate Authority in the context of that eviction ground are founded on evidence available on R. C. R. No.203 of 2004 -9- record in the case. It was found that the need of the landlady that her husband who is a medical practitioner wants to demolish the petition schedule building and to put up a hospital-cum-shopping complex is bona fide one. The argument of the tenant and the subtenant that the landlady's husband is not a dependent on the landlady was rightly repelled by the Appellate Authority which has taken the correct view that dependency need not be financial dependency. In the context of the Rent Control Act, the husband will be a dependent on the wife if the husband will normally look up to his wife for the purpose of a building for the accomplishment of his need, if she has a building of hers. It was taking the view that the need comes under clause (iv) of sub-section (4) of Section 11 (reconstruction) that the Rent Control Court negatived the landlord's plea. But we are of the R. C. R. No.203 of 2004 -10- view that the Appellate Authority was right in its view that when the need projected is to put up a brand new building after demolishing the existing building and to use that building for hospital and shopping complex, then the ground falls under sub-section (3) of Section 11 and not under clause (iv) of sub-section (4) of Section 11. We would have been inclined to consider the request of the revision petitioner that he be inducted into a portion of the shopping complex subject to his liability to pay prevailing rent to the landlady. But we notice that the revision petitioner is the subtenant who is not competent to impugn order of evictions passed against the tenant under sub- section (3) of Section 11. 5. The result of the discussions is as follows: RCR is dismissed. The memorandum of cross objections filed by the landlady is allowed. Eviction is R. C. R. No.203 of 2004 -11- ordered against the revision petitioner on the ground under sub-section (3) of Section 11 ad clause (i) of sub-section (4) of Section 11. Even though this court normally does not show indulgence to subtenants, in view of the fact that the subtenant is a practising lawyer of the Nedumangad courts, we are inclined to grant him time till 15-4-2010 subject to the following conditions. 1) A sum of Rs.14,000/- will be paid by the revision petitioner to the landlady on account of the rent payable by the tenant within two months from today. 2) The revision petitioner shall file an affidavit before the execution court or the Rent Control Court as the case may be with notice to the landlady within one month from today undertaking to give peaceful surrender of the petition schedule building on or R. C. R. No.203 of 2004 -12- before 15-4-2010 to the landlady or her husband. It will also be undertaken through the affidavit that occupational charges at the rate of Rs.200/- per mensem shall be paid till the day possession is handed over to the landlady without fail. The execution court will adjourn the delivery to 15-4-2010 once the affidavit as above noticed by that court. PIUS C. KURIAKOSE JUDGE K. SURENDRA MOHAN JUDGE kns/- R. C. R. No.203 of 2004 -13- PIUS C. KURIAKOSE & P. Q. BARKATH ALI, JJ. ------------------------------------------------ R. C. R. No.203 of 2004 ------------------------------------------------ Dated this the 10th day of July, 2009 ORDER Pius C. Kuriakose, J No representation for the petitioner today also. This RCR will stand dismissed for default. PIUS C. KURIAKOSE JUDGE P. Q. BARKATH ALI JUDGE kns/-