IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 RCRev..No. 238 of 2005() ------------------------ RCA.145/2002 of RENT CONTROL APPELLATE AUTHORITY & ADDL. DISTRICT COURT-II, KOZHIKODE RCP.40/2001 of RENT CONTROL/MUNSIFF COURT, VADAKARA .................... REVISION PETITIONER/2ND RESPONDENT: ----------------------------------------------------------------- M.K. SASI, S/O. NARAYANAN, AGED ABOUT 52 YEARS, REPAIRER, MEELAKKAD HOUSE, THALAYOLAPARAMBA, VADAKARA. BY ADVS. SRI.V.M.SYAM KUMAR, SMT.KRIPA ELIZABETH MATHEWS. RESPONDENT(S): APPELLANTS 1 & 2AND 1ST RESPONDENT RESPECTIVELY: ------------------------------------------------------------------------------------------------------------------- 1. C.R. KUNHIKANNAN, S/O. CHEKKOTTY, AGED ABOUT 47 YEARS, C.R. NILAYAM, CHEMARATHUR AMSOM, THODANNUR DESOM, VADAKARA TALUK. 2. RANJITH, S/O. KUNHIKANNAN, ABOUT 22 YEARS, C.R. NILAYAM, CHEMMARATHUR AMSOM, THODANNUR DESOM, VADAKARA TALUK. 3. MEKKATTERI PAVITHRAN, S/O. KUNHIRAMAN, AGED ABOUT 39 YEARS, CHEMMARATHUR AMSOM, VADAKARA TALUK, PIGMI COLLECTION AGENT VADAKARA CO-OPERATIVE RURAL BANK, NUT STREET BRANCH, VADAKARA. R1 & R2 BY ADVS.SRI.C.VATHSALAN, SRI.K.RAKESH ROSHAN SMT.THUSHARA.V THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON I.A.NO.1820/2005 IN RCR NO.238/2005 DISMISSED 21/03/2011 SD/- PIUS C. KURIAKOSE, JUDGE SD/- N.K.BALAKRISHNAN,JUDGE /TRUE COPY/ P.A.TO JUDGE Kss PIUS C. KURIAKOSE & N.K. BALAKRISHNAN, JJ. = = = = = = = = = = = = = = = = R.C.R. NO. 238 OF 2005 = = = = = = = = = = = = = = = = Dated this the 21st day of March, 2011. O R D E R Pius C. Kuriakose,J. Under challenge in this revision filed by the alleged sub-tenant is the judgment of the Rent Control Appellate Authority ordering eviction on the ground of subletting. In fact under the impugned judgment the Appellate Authority has confirmed the order of eviction which had been passed by the Rent Control Court on grounds of arrears of rent also. But as the order of eviction passed u/s 11(2)(b) is always liable to be got evicted by making requisite deposits under S.11(2)(c), in this revision the challenge is against the order of eviction passed u/s 11(4)(i)- ground of subletting only. The defence of the tenant to the landlord's allegation R.C.R. NO. 238 OF 2005 -:2:- that the first respondent in the RCP is the tenant and that the 2nd respondent in the RCP who is the present revision petitioner is an unauthorized sublesee and that after taking the building on lease on the strength of Ext.A1 the tenant put the alleged sublesee in possession and ever since then the alleged sublesee who was in physical possession, was paying rent to the landlord. The Rent Control Court on appreciating the evidence adduced by the alleged sub-leasee/revision petitioner, particularly the rent receipts Ext.B1 to B69, B71 series of photographs and Exts.B75 to B89 property tax receipts issued by the Municipality, Ext.B90 account books and other documents Exts.B91 to B103 proving that it was the revision petitioner who was actually conducting the business, came to a conclusion that, at all materials times the revision petitioner, the alleged sublesee possessed the building and conducted R.C.R. NO. 238 OF 2005 -:3:- workshop therein. It was also noticed that the landlord himself was in occupation of an adjacent room and hence actual possession and conduct of business by the alleged sublesee was well known to the landlord from the beginning. The Rent Control Court accordingly concluded that this was a case where the landlord by his conduct had recognized the alleged sublesee to be his tenant. Even though judicial precedents taking the view that acquiescence cannot be a valid defence to an action for eviction on the ground of subletting unless there was clinching evidence to show that the landlord has consented to an arrangement between the tenant and the sub tenant, the learned Rent Control Court would conclude that those precedents will not apply to the facts and circumstances which obtained in this case. Accordingly the Rent Control Court would strongly criticise the action of the landlord in not arraying the R.C.R. NO. 238 OF 2005 -:4:- alleged sublesee as a party to the RCP. According to the Rent Control Court unwillingness on the part of the landlord to mention the name of the alleged sublesee and to implead him as a party is indicative of the demerit of the landlord's case. In view of that the Court declared eviction u/s 11(4)(1). 2. The Appellate Authority under the impugned judgment interfered with the above decision keeping in mind the law as explained by various judicial precedents. According to the learned Appellate Authority none of the items of evidence brought on record by the tenant will show that the landlord had consented to the arrangement of sublease or transfer between the tenant and the sub tenant. 3. In this revision various grounds are raised challenging the decision of the Appellate Authority. Sri. V.S.Syamkumar learned counsel for the revision R.C.R. NO. 238 OF 2005 -:5:- petitioner addressed very strenuous arguments before us on the basis of those grounds. Learned counsel took us through the full text of the Rent Control Court order as well as the judgment of the Appellate Authority. According to the learned counsel unlike the order of the Rent Control Court the judgment of the Appellate Authority is a cryptic one and the result is not based on re-appreciation of pleadings and evidence which was absolutely necessary. The judgment, in the opinion of the learned counsel, is vitiated by illegality, irregularity and impropriety. 4. Mr.C.Vathsalan, learned counsel for the appellant, would support the impugned judgment of the Appellate Authority and cited various decisions such as 2001 (1) KLT 772(Raghavan v. Sreedhara Panicker), 2001 (2) KLT 857(Fathima v. Saidali Bafakhy) and AIR 2002 SC 2057 (P.John Chandy & R.C.R. NO. 238 OF 2005 -:6:- Co. (P) Ltd. v. John P. Thomas). 5. We have anxiously considered the submissions addressed at the bar. We have scanned the judgment of the Appellate Authority as well as the impugned order of the Rent Control Court. As the findings are divergent we have applied our mind to the pleadings and the items of evidence to which our attention was drawn by the respective counsel. According to us it is keeping in mind the law as laid down by the Division Bench in 2001 (1) KLT 772 (Raghavan v. Sreedhara Panicker), 2001 (2) KLT 857(Fathima v. Saidali Bafakhy) and AIR 2002 SC 2057 (P.John Chandy & Co. (P) Ltd. v. John P. Thomas) that the learned Appellate Authority reversed the decision of the Rent Control Court. It was rightly noticed by the learned Appellate Authority that there is transfer of possession of the building in question and R.C.R. NO. 238 OF 2005 -:7:- further that Ext.A1 executed in favour of the revision petitioner is not with the consent of the landlord. Admittedly and evidently the landlord has not given any consent in writing for any transfer or sublease. 6. Mr.Syamkumar's argument was that consent can be oral also and that the same can be gathered from the circumstances. Long delay in not initiating action against the tenant on the ground of subletting is a situation on the basis of which landlord's consent can be gathered. We find it extremely difficult to accept the above submissions as the various items of evidence relied upon by the revision petitioner especially the rent receipts will clearly show that the landlord was unwilling to issue even a single rent receipt in the name of the alleged subleasee. Insistence of the landlord in issuing rent receipts only in the name of first respondent in the RCP, in our opinion, is a circumstance R.C.R. NO. 238 OF 2005 -:8:- which demolishes the case of the revision petitioner that the landlord had given consent. It was practically admitted that the license for conducting workshop issued by the local authority, Vadakara Municipality stands in the name of the first respondent, the tenant only. The very fact that the alleged sublease did not have in terms of obtaining a license from the Municipality in his name shows that he did not have courage to approach the landlord for a consent which is necessary in the matter of obtaining licence. The other documents produced by the revision petitioner at best may show it is the revision petitioner alone who is conducting the business. As a matter of fact those documents support the landlord's case that the tenant is no longer in possession and it is the alleged sub tenant who is having exclusive possession over building which is not authorized by the landlord. In short we do not R.C.R. NO. 238 OF 2005 -:9:- find any illegality, irregularity or impropriety as contemplated by S.20 in the judgment of the Appellate Authority. At the same time on a consideration of the totality of the facts and circumstances of the case, even as we confirm the finding of the Appellate Authority and dismiss the revision petition, we issue a further direction to the executing Court to keep in abeyance all further proceedings for delivery till 31.3.12 subject to the following conditions. (1) The revision petitioner shall file an affidavit before the Execution Court or the Rent Control Court, within three weeks from today undertaking to give peaceful surrender of the building to the respondents on or before 31.3.11 and undertaking further to discharge the entire arrears of rent as on today, if any, within one month from today. R.C.R. NO. 238 OF 2005 -:10:- (2) He shall further undertake that he shall pay occupational charges to the landlord at the rate of Rs.1,000/- per month without fail from 1.4.11. (3) The revision petitioner will get the benefit of time allowed as above, only if he files affidavit on time and honour the undertakings therein. It is also made clear that if any of the undertakings is seen violated, it is open to the landlord to move the Execution Court for immediate orders of delivery. PIUS C. KURIAKOSE,JUDGE. N.K. BALAKRISHNAN,JUDGE. ul/-