IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 RCRev..No. 434 of 2004(A) ------------------------ RCA.12/2003 of D.C. & SESSIONS COURT,KOZHIKODE RCP.46/2000 of ADDL.M.C.,KOZHIKODE-I .................... REVISION PETITIONERS/APPELLANTS/RESPONDENTS 2 TO 6: ---------------------------------------- 1. SURYAPRAKASH, S/O.KRISHNAN. 2. K.RAJENDRAN, S/O.KRISHNAN. 3. LEELA, D/O.KRISHNAN. 4. THARA, D/O.KRISHNAN. 5. PRAKASHAN, S/O.KRISHNAN, ANAKUZHITHARA HOUSE. (REVN. PETITIONERS ARE RESIDING AT KOTTOOLI AMSOM AND DESOM OF KOZHIKODE TALUK). BY ADVS. MR. T.SETHUMADHAVAN MR. PUSHPARAJAN KODOTH RESPONDENT(S): --------------- 1. K.T.PRASAD, S/O.K.T.GOPALAN, "POSH GARDEN", KOTTOOLI AMSOM AND DESOM, KOZHIKODE TALUK. 2. K.T.PRAKASH, S/O.GOPALAN, KOTTOOLI AMSOM AND DESOM, KOZHIKODE TALUK. ADVS. MR. K.PRAVEEN KUMAR FOR R1 MR.T.P SUDHEER KUMAR FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.3789 OF 2004 IN RCR.434 OF 2004 DISMISSED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 10.2.2010 okb /True copy/ P.A. to Judge PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. --------------------------------------------------- Rent Control Revision No.434 of 2004 ---------------------------------------------------- Dated this the 10th day of February, 2010 O R D E R --------------- Pius C.Kuriakose,J. The building which is subject matter of this revision petition under Section 20 of Act 2 of 1965 filed by the tenant and the alleged subtenants is a dilapidated residential building situated in a very important area of Kozhikode Corporation. It appears to us that the respondent landlord himself did not have a clear idea as to who, and when the building was let out. In the year 1980 he filed RCP.51/1980 arraying his own brother Sri.K.T.Prakash, the 1st respondent in the present Rent Control Petition, as the tenant. In that Rent Control Petition the 1st revision petitioner herein (the 2nd respondent in the present Rent Control Petition) was arrayed as a subtenant under Sri.K.T.Prakash. In that Rent Control Petition the 1st revision petitioner contended that he is the tenant. That contention was upheld. Now in the present Rent Control Petition also Mr. K.T. Prakash is arrayed as the respondent. However a scrutiny of the pleadings will show that it is practically R.C.R.434/2004-A 2 conceded by the landlord that it has been finally held in the earlier proceedings that Sri.Suryaprakash, the 1st revision petitioner, is the tenant. Hence allegation in the present Rent Control Petition is that Suryaprakash has parted with the possession of a portion of the petition schedule building in favour of the revision petitioners 2 to 4 who are none other than the brothers and sisters of the 1st revision petitioner. The allegation is that the 1st revision petitioner no longer resides in the petition schedule building. He has shifted his residence to his own building at Mukkom. Apart from the ground of subletting, ground of arrears of rent under Section 11(2)(b) was also projected. The allegation regarding arrears of rent was that the monthly contract of Rs.10/- is in arrears since 1.4.1984 and was not paid despite demands. The defence to the case of sublease was that the building was taken by the 1st revision petitioner for occupation by the family for residential purpose and that from the very commencement of lease the other revision petitioners were also residing along with the 1st revision petitioner in the building. The defence to the case of arrears of rent was that in the previous Rent Control Petition an order under Section 11(2)(b) was passed in which the entire arrears of rent including substantial portion of the R.C.R.434/2004-A 3 arrears now claimed was also paid and the order under Section 11(2)(b) could be got vacated. The Rent Control Court enquired into the matter and at trial the evidence consisted of Ext.A1 to A4, PW1 and RW1. The Rent Control Court on appreciating the evidence came to the conclusion that the rent was in arrears as alleged. That court noticed that absolutely no evidence was adduced by the revision petitioners to show that the revision petitioners other than the 1st revision petitioner were residing in the petition schedule building from the date of commencement of the tenancy as contended by them. It was also noticed that the claim of the 1st revision petitioner that the building at Mukkom belongs to his wife was also not supported by any evidence. Thus it was held that the tenant 1st revision petitioner is not occupying the building at all and that it is the other revision petitioners who are in actual occupation. On the basis of such a finding it was concluded that the revision petitioners other than the 1st revision petitioner alone are in occupation and their occupation has not been authorised by the landlord and hence amounts to objectionable sublease. Order of eviction was passed under Section 11(2)(b) and 11(4)(i). Appellate Authority considered the appeal preferred by the present R.C.R.434/2004-A 4 revision petitioners. That authority made a re-appraisal of the entire evidence on record and concurred with all the conclusions of the Rent Control Court. Accordingly the order of eviction was confirmed. 2. In this revision petition filed under Section 20 various grounds have been raised assailing the judgment of the Appellate Authority and Sri.Jayesh Mohankumar, learned counsel for the revision petitioner addressed us on the basis of the grounds assailing the findings of the Rent Control Court and Appellate Authority. All the submissions were stiffly resisted by Mr. Sibi Thomas and Mr.Praveen Kumar, the learned counsel for the respondent. Sri.Jayesh Mohankumar submitted that the finding which is entered by the authority below is that the 1st revision petitioner tenant has ceased to occupy the building. Cessation of occupation is separate ground under Section 11(4)(i). That ground has not been invoked at all by the landlord. Even if it is assumed that the 1st revision petitioner has ceased to occupy the building, having permanently shifted to Mukkom, that will not amount to sublease in favour of the other revision petitioners. Other revision petitioners, learned counsel pointed out, are the siblings of the 1st revision petitioner and occupation by other R.C.R.434/2004-A 5 revision petitioners is at best as permitted by the revision petitioner. So relationship between the tenant and alleged subtenant is not that of tenant and landlord but at best only that of tenant and licensee under the tenant. Mr. Jayesh Mohankumar would challenge the order of eviction passed under Section 11(2)(b) also. According to him the arrears of rent as demanded in the statutory notice sent by the landlord was already paid in the previous Rent Control Petition and that is why order of eviction passed in that Rent Control Petition was vacated. 3. Learned counsel for the respondent would support the judgment of the Rent Control Appellate Authority. He reminded us of the contours of the revisional jurisdiction of this court under Section 20. According to him, there is no illegality, irregularity or impropriety warranting interference with the judgment of the Appellate Authority. That judgment was described by him as a reasoned judgment founded on evidence. He submitted that in the previous Rent Control Petition the 1st revision petitioner tenant did not have a contention that his siblings were also residing along with him. He also pointed out that the 1st revision petitioner raised unsuccessful plea of kudikidappu right, that he alone was the R.C.R.434/2004-A 6 kudikidappukaran and not that kudikidappu right should be assigned in favour of the entire family. Learned counsel also highlighted that absolutely no evidence was produced to show that revision petitioners were always residing with the 1st revision petitioner from the date of commencement of the tenancy. 4. We have anxiously considered rival submissions raised at bar. We have scanned the order of Rent Control Court and the judgment of Appellate Authority. 5. We are not impressed by the submission of Mr. Jayesh Mohankumar that order of eviction passed under Section 11(2)(b) is liable to be vacated in view of some deposits alleged to have been made against application under Section 11(2)(c) filed in the RCP. If such deposit has been made, it is always possible to the revision petitioner to produce documentary evidence before the Rent Control Court. In the absence of any such evidence the Rent Control Court and Appellate Authority were perfectly justified in concluding that rent was in arrears at the time of filing of the petition, as alleged in the RCP. 6. So also, we have no difficulty to agree with the Rent Control Court and Appellate Authority that the case of the R.C.R.434/2004-A 7 revision petitioners that revision petitioners other than 1st revision petitioner were residing in the same building as members of the family from the date of commencement of the tenancy is not acceptable. As noticed by the court below, not even a scrap of paper to show that revision petitioners other than the 1st revision petitioner had been residing there at any point of time earlier than immediately prior to the filing of RCP. 7. On a reading of the Judgments of the Appellate Authority and Rent Control Court it appears to us that those authorities did not have much appreciation for the manner in which the 1st revision petitioner, the admitted tenant, was discharging his obligation as a tenant. He was not paying even the paltry rent of Rs.10/-, which he was liable to pay. He had raised a frivolous contention that he is kudikidappukaran and succeeded in protracting the proceedings against order of eviction. We also do not think that 1st revision petitioner can boast of being at least a moderately decent tenant. But then the question is whether eviction ground under Section 11(4)(i) has been made out. We are of the view that if eviction ground under Section 11(4)(i) is to be made out, it has to be established that there is either an objectionable sublease R.C.R.434/2004-A 8 which means existence of a landlord tenant relationship between the tenants and the sub tenants or an objectionable transfer of the rights under the lease. In the instant case the 1st revision petitioner is no longer in occupation of the building and the other revision petitioners are in actual occupation. Obviously the occupation of the building (or part of the building by revision petitioners other than 1st respondent) has not been authorised by the landlord. But then it is clear to our mind and their occupation is as permitted by the 1st revision petitioner, who is their direct brother. In other words, we are of the considered view that the relationship between the 1st revision petitioner and the other revision petitioners is that of tenant and licensee under the tenant as is natural in view of the close relationship between them. We are therefore inclined to hold that the order of eviction passed under Section 11(4)(i) is liable to be vacated. 8. At the same time we notice that the authorities under the Rent Control Act are expected to exercise their powers in accordance with the principles of equity and justice and good conscience (Rule 11(c)(8) of Statutory Rules). As already noticed by us, here is a tenant (1st revision petitioner) who would not pay even the paltry rent of Rs.10/- payable by R.C.R.434/2004-A 9 him to the landlord. Here is a tenant who raised the contention of kudikidappu right ultimately found to be a frivolous one and succeeded thereby in protracting litigation for an indefinitely long duration of time. More than that, we notice that the building in question, dilapidated though it may be now, is a building large enough to accommodate 5 to 8 persons and situated in a very prime locality of Kozhikode. We see that if the building is being let out after repair and maintenance, the same will fetch about Rs.4000 to 5000/-. The rent of Rs.10/-, which was being paid by the revision petitioner, is ridiculously low. Therefore we feel that on considerations of equity and justice we need interfere with the order of eviction passed under Section 11(4)(i) only by imposing conditions. 9. The result of the above discussion is as follows. Order of eviction passed under Section 11(2)(b) is confirmed. Order of eviction passed under Section 11(4)(i) is set aside subject to the following conditions:- (i) The monthly rent payable by the 1st revision petitioner in respect of the building in question is enhanced retrospectively with effect from 1.5.2002 at Rs.250/- and prospectively with effect from 1.3.2010 at Rs.1000/-. R.C.R.434/2004-A 10 (ii). The 1st revision petitioner shall pay the rent which has fallen due from 1.5.2002 till 1.3.2010 at the rate of Rs.250/- per mensum within two months from today to the respondent against receipt which should be issued to him. This judgment setting aside the order of eviction under Section 11(4)(i) will become operative only if an undertaking in the form of an affidavit is submitted by the 1st revision petitioner before the Rent Control Court or the execution court as the case may be undertaking to discharge the arrears of rent @ Rs.250/- per mensum for the period indicated above within one month and undertaking further to pay rent in future @ Rs.1000/- per mensum from 1.3.2010. If such undertakings are not filed, the impugned judgment will stand confirmed completely. We clarify that our refixation of rent as above is tentative and subject to regular fixation of fair rent at the instance of either of the parties. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb