IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 RCRev..No. 299 of 2008() ------------------------ RCA.15/2006 of D.C. & SESSIONS COURT,KOLLAM RCOP.38/2004 of ADDL.MUNSIFF COURT, KOLLAM .................... REV.PETITIONERS/RESPONDENTS/RESPONDENTS ------------------------------------------------------- 1. K.I.JACOB,KARINJAPPALLIL HOUSE KUREEPUZHA, KOLLAM. 2. NAFTHALI, TYPIST,/JOB WORKERS M.C.NO.849/XXV NEAR COLLECTORATE, THEVALLY,KOLLAM-9. BY ADV. SRI.T.A.SHAJI RESPONDENT/APPELLANT/PETITIONER: ------------------------------------------- R.PRADEEP NAIK S/O.LATE RAMANATHA BHATTAR GOVT.SERVANT, RESIDING AT VAYYAMUKKU HOUSE KOTTAKKAKOM WARD,KOLLAM. ADV. SRI.RAJA VIJAYARAGHAVAN SRI.M.T.SURESHKUMAR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 26/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------------------- RCR. No. 299 OF 2008 ----------------------------------------------- Dated this the 24th day of February, 2009 O R D E R Pius C.Kuriakose, J. The tenant and the alleged subtenant against whom order of eviction has been passed on the ground of subletting by the Rent Control Appellate Authority are the revision petitioners. The allegation of the respondent landlord who sought eviction of the revision petitioners from the petition schedule building on the ground under section 11(4)(i) was that the first revision petitioner tenant to whom the building had been let out for the purpose of doing photostat business has wound up that business and that the building has been sublet or transferred unauthorisedly to the second revision petitioner. It is alleged that the second revision petitioner is conducting job typing work in the premises and that in spite of issuance of the statutory intimation notice under the proviso to section 11(4)(i) the sublease has not been terminated and the second revision petitioner continues to be in possession of the premises. 2. The revision petitioners resisted the petition by filing a joint counter affidavit. It was contended that the first revision petitioner tenant is entitled on the terms of the lease to carry on any business of RCR. N0. 299/08 -2- his choice and that the first revision petitioner is continuing to run the photostat business apart from conducting job works which he started recently in the tenanted premises. It was explained that in 2003 the first revision petitioner had to sell his photostat machine which had gone out of order and hence the photostat business could not be run for some time and that the said business was restarted after acquiring a new machine on 23-12-2003. It was further contended that the first revision petitioner is running his concern under the name and style “Quilon Photostat”. As regards the presence of the second revision petitioner, it was contended that the second revision petitioner is only an employee of the first revision petitioner who is paid Rs.150/- per day towards his wages. 3. The rent control petition was enquired into by the Rent Control Court and evidence at trial consisted of testimonies of PW-1 and CPWs. 1 and 2 and documents A1 to A5 and B1 to B10 apart from Exts.C1 and C2 commission report and mahazar. The Rent Control Court on appreciating the materials came to the conclusion that the landlord had failed to establish that the premises had been sublet and that exclusive possession of the premises has been transferred to the second revision petitioner. Accordingly, that court dismissed the RCP. In appeal, RCR. N0. 299/08 -3- however, on a re-evaluation of the evidence in the light of the pleadings and the law, the Appellate Authority would reverse the finding of the Rent Control Court and conclude that there has been transfer of exclusive possession of atleast a portion of the tenanted premises to the second revision petitioner and that the revision petitioners were unsuccessful in establishing that the jural relationship between them is that of employer and employee. Resultantly the Appellate Authority would allow the petition and order eviction under section 11(4)(i). 4. We have heard the submissions of Sri.T.A.Shaji, learned counsel for the petitioner and those of Sri.Raja Vijayaraghavan who took notice on behalf of the respondents. Mr. Shaji would draw our attention to paragraph 5 of the rent control petition and corresponding paragraph 8 of the statement of objections filed by the revision petitioners. He drew our attention to the report submitted by the commissioner and to the depositions of PW-1, CPW-1, CPW-2 and CPW-3. He referred to Exts. B1, B2, A2 and A5 and would submit that the finding of the Rent Control Appellate Authority was entered on conjectures and surmises and is based on non-existent material and unjustified assumptions. The learned counsel submitted that the RCR. N0. 299/08 -4- primary burden to prove that the tenanted premises has been sublet or transferred is on the landlord and that burden has not been discharged at all in this case by adducing cogent evidence. Mere presence of the second revision petitioner in the room in question or even the fact that he was sitting in the chair put behind the photostat machine will not in any way suggest that the building was sublet or exclusively transferred. The learned counsel submitted that the case of the revision petitioners supported as the same is by the testimonies of CPWs. 1 to 3 and documents Exts.B1 to B10 was much more probable than that of the landlord. Ext.B1 sale note clearly established that a new photostat machine was purchased by the first revision petitioner. Ext.B2 series are cash bills in the name of the first petitioner towards purchase of spare parts for the machine and B3 series will reveal that the first petitioner is continuing to pay rent to the landlord. As against this there was nothing but the self-serving oral vibrations of the landlord to prove the alleged subletting. The Appellate Authority was not at all justified in drawing adverse inference against the revision petitioners due to the non-production of documents such as wage register etc. Counsel reiterated that the burden of proof has been wrongly cast by the Appellate Authority on RCR. N0. 299/08 -5- the tenant. Counsel would rely on the judgment of a Division Bench of this Court in Abdul Khader v.Ali (2003(1) KLT 546) wherein it is ruled that it is for the landlord to prove that in between the tenant and the sub-tenant there is a relationship of lessee and lessor and the possession of the premise was parted with exclusively by the tenant in favour of the sub-tenant. Mr.Shaji would argue that it is necessary to succeed in a case for eviction on the ground of subletting the landlord should establish landlord tenant relationship between the tenant and the alleged sub-tenant and also that the tenant has parted with exclusive possession of the building in favour of the alleged sub- tenant. Mr.Shaji relied also on the judgment of another Division bench of this Court in Sadasivan Chettiar v. Rajendran, (2005(1) KLT 653) to argue that just because somebody other than the tenant is found in possession of the tenanted premises an inference of transfer including subletting cannot necessarily follow. 5. The submissions of Mr.Shaji were resisted by Mr.Raja Vijayaraghan who would support the conclusions of the learned Appellate Authority on the reasons stated in that authority's judgment. We have considered the rival submissions in the light of the statutory provisions, the judicial precedents cited and also the relevant pleadings RCR. N0. 299/08 -6- and those items of evidence to which our attention was drawn by the respective counsel during their submissions. (PIUS C.KURIAKOSE, JUDGE) ksv/-