IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 RCRev..No. 31 of 2003() ----------------------- ( RCA.NO.1/2001 OF ADDL. DISTRICT COURT, PALAKKAD RCP.NO.19/1997 OF RENT CONTROL COURT, PATTAMBI) PETR /1ST RESPT IN RCA /PETR IN RCP ------------------------------------------------------ POCKER, AGED ABOUT 71 YEARS, S/O.KOPPATH PARAMEL KUNHAMMED, KODALUR DESOM, MARUTHUR AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE RESPONDENT(S): APPLT & R2 IN RCA & RESPTS IN RCP ------------------------------------------------ 1. RAVINDRAN, AGED 46 YEARS, S/O.GOPALAN, PERUMUDIYUR, OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. RAMAKRISHNAN, AGED ABOUT 60 YEARS, S/O.GOPALAN, WOKRING AT INSITE ADVERTISING SERVICES 701, DALMAL TOWER, FREE PRESS JOURNAL ROAD, NARIMAN POINT, MUMBAI - 400 021. ADV. SMT.PREETHY KARUNAKARAN FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 27/07/2009, THE COURT ON 13/10/2009 PASSED THE FOLLOWING: PIUS.C KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No.31 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of October, 2009 ORDER Barkath Ali, J. In this revision under Section 20 of the Kerala Buildings ( Lease and Rent Control) Act 1965, the landlord challenges the judgment of the Appellate Authority ( II Additional District Judge), Palakkad dated February 25, 2003 reversing the order of eviction passed by Rent Control Court ( Munsiff), Pattambi dated 13-11-2000 under Section 11(4)(i) of the Act in Rent Control Petition 19/1997 and dismissing the rent control petition. 2. The landlord/revision petitioner filed rent control petition 19/1997 before the Rent Control Court ( Munsiff ), Pattambi seeking eviction of the petition schedule building under Sections 11(2)(b), 11(4)(i) and 11(4) (iii) of the Act on the allegation that the tenant/revision first respondent kept rent in arrears from May 1997 onwards, that he sub-let the shop room to his brother, the revision second respondent and that he is conducting jewellery business in another shop room nearby. RCR.No.31/2003 Page numbers 3. The tenant/revision first respondent resisted the claim for eviction contending that the rent fell in arrears as the landlord refused to receive the same, that the sub lease alleged is false, the second respondent, his brother is employed in Bombay and that the other jwellery business is a partnership business. 4. The landlord was examined as PW1 and he produced Exts.A1 to A3 before the Rent Control Court. The tenant was examined as RW1 and the alleged sub tenant as RW2 and they produced Exts.B1 to B4. Ext.X1 was also marked. On an appreciation of evidence, the learned Rent Controller found that the tenant has sub leased the shop room to the second respondent and ordered eviction under section 11(4)(i) of the Act. Claim for eviction under sections 11(2)(b) and 11(4)(iii) was negatived. On an appeal by the tenant, the Appellate Authority found that landlord has failed to prove the sub- lease alleged and allowed the appeal and dismissed the Rent Control Petition. Now the landlord has come up in revision. 5. Sri.K.Ramkumar, learned senior counsel for the landlord argued that as in Ext.X1 the abstract of building tax assessment register RCR.No.31/2003 Page numbers of the petition schedule shop room, it is shown that second respondent is the occupier, it is proved that the tenant has sub let the shop room to him as found by the Rent Control Court. Smt.Preethy Karunakaran, learned counsel for the tenant would submit that merely on that ground alone it cannot be held that tenant has sub leased the shop room to second respondent and that second respondent is employed in Bombay. She supported the judgment of Appellate Authority. 6. The point which falls for consideration is whether the finding of the Appellate Authority that the tenant has failed to prove the alleged sub lease in favour of the second respondent and dismissing the RCP can be sustained ? 7. The landlord relied mainly on Ext.X1 to show that the tenant has sub let the shop room to his brother RW2. Ext.X1 is the extract of the building tax assessment register for the period 1993- 1994. In this the name of the occupier of the shop room is shown as RW2. The case of RW1 and RW2 was that RW1 is employed in Bombay and that he has no connection with the business conducted by RW1 in the petition schedule shop room. But RW1 was not in a RCR.No.31/2003 Page numbers position to explain how the name of RW2 happened to be mentioned in Ext.X1. Further no document is produced to show that RW2 is employed in Bombay. 8. We have directed the revision/first respondent to produce the trade licence issued in the name of first respondent for conducting business in the petition schedule shop room. The counsel for respondents Smt.Preethy Karunakaran would submit that no trade licence is issued to the first respondent. It is clear from the above that the tenant/first revision respondent has transferred possession of the rented premises to his brother, the second revision respondent. 9. A Division Bench of this court has held in Damodara Pai v. Challamma (2003(1) KLT 487) that the tenant transferring the tenanted premises to his brother amounts to sub letting and that the landlord need not prove positively adducing evidence that transfer was for valuable consideration. Another Division Bench of this court has held in Mohammed Sageer v. Prakash Thomas (2005(2) KLT 400) that on establishing that tenant has transferred exclusive possession to another person, the court can draw a presumption under sections 114 of RCR.No.31/2003 Page numbers Evidence Act that the transfer was for a valuable consideration. In the light of the principles laid down in the above decisions, in the present case as the the landlord has proved that the tenant has transferred the petition schedule shop room to his brother, it has to be presumed that the said transfer was for valuable consideration. 10. Smt.Preethy Karunakaran, the learned counsel for the respondents strenuously argued that second respondent is employed as a driver in Bombay and that therefore the case of sub letting put forward by the landlord is false. In support of her case she pointed out that the vakkalath for RW2 before lower court was signed by RW2 at Bombay and attested by an Advocate there. Before the lower court RW2 seen to have produced a certified copy of his driving licence. But all those documents do not show that he was employed in Bombay. RW 2 has also produced Ext.B2, a letter written to him by his father dated 28-02-1994 which was received by RW2 in his address at Bombay. What is stated in Ext.B2 is regarding purchase of visa. Therefore it can only be presumed that he went to Bombay in 1994 to receive a visa, as observed by Rent Control Court. Further, RW2 RCR.No.31/2003 Page numbers admitted when cross examined that there are salary certificate, Bank account etc. to establish that he is employed in Bombay. But none of those documents were produced by him. No other witnesses were also examined on his side to prove his alleged employment in Bombay. 11. For all these reasons, we are not inclined to accept the case of respondents that RW1 is employed in Bombay. That being so, the finding of the Appellate Authority that landlord has failed to prove sub- letting of the petition schedule shop room by RW1 to RW2 has to be set aside and the finding of Rent Control Court that landlord is entitled to eviction on the ground of sections 11(4) (i) of the Act has to be restored. 12. In the result, the revision petition is allowed. The judgment of the Appellate Authority dismissing the RCP is set aside. The order of Rent Control Court ordering eviction under sections 11(4) (i) of the Act is restored. 13. Smt.Preethy Karunakaran, the learned counsel for respondents lastly submitted that in the event of ordering eviction, time may be granted till Decmber 31, 2009 for vacating the premises. This RCR.No.31/2003 Page numbers is opposed by Sri.K.Ramkumar, learned senior counsel for the landlord. In the circumstances of this case, we feel that time upto March 31, 2010 can be granted to respondents to vacate the premises on the following conditions : 1) The respondents shall file an affidavit before the rent control court or the executing court as the case may be within three weeks from this date agreeing to surrender peaceful possession of the premises on or before March 31, 2010. On receipt of such an affidavit, the court shall defer the delivery to 01/04/2010. The first respondent shall pay rent upto date within one month from this date and future rent as and when the same falls due, failing which the respondents will not be entitled to the benefit of time granted by this court. In the result, the revision petition is allowed as found above. In the circumstances, parties shall bear their own costs. PIUS.C KURIAKOSE, JUDGE P.Q.BARKATH ALI, JUDGE sv. RCR.No.31/2003 Page numbers