IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 CRP.No. 1035 of 2003() ---------------------- RCA.47/1999 of ADDL.DISTRICT COURT, KOZHIKODE RCP.118/1997 of MUNSIFF COURT, VADAKARA .................... REVN. PETITIONER(S): 1ST RESPONDENT/PETITIONER ---------------------------------------------- MANATHANTH JANU AMMA, D/O.LAKSHMI AMMA, RET.TEACHER, RAVIPURAM, MEMUNDA AMSOM DESOM, VADAKARA TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S): 2ND RESPONDENT & RESPONDENTS ------------------------------------------- 1. VANATHU POYIL KUNHIRAMAN, S/O.CHATHU, MERCHANT, MEMUNDA AMSOM DESOM, VADAKARA TALUK. 2. MEETHALE THOKKOTTU MEETHAL SIVADASAN, S/O.CHATHU, TAILOR, MANIYUR AMSOM, CHEMMARATHUR DEDOM, VADAKARA TALUK. ADV. SRI.MOHANAN V.T.K. FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: O R D E R NONE APPEARS FOR THE PETITIONER. THE C.R.P. IS DISMISSED FOR DEFAULT. 30.10.2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- C.R.P. No.1035 of 2003 ---------------------------------- Dated this the 26th day of July, 2010 O R D E R --------------- Pius C.Kuriakose,J. The landlady is the revision petitioner. She is aggrieved by the judgment of the Appellate Authority dismissing the application filed by her on the ground of subletting under Section 11(4)(i) after reversing an order of eviction which had been passed in her favour by the Rent Control Court. In fact the landlady had invoked the ground of arrears of rent also. But it is submitted before us that, that ground does not any longer survive since the entire arrears alleged in the Rent Control Petition was discharged during the pendency of the Rent Control Petition. 2. The allegation of the landlady in the context of the ground under Section 11(4)(i) was that the first respondent in the Rent Control Petition was the tenant on the basis of Ext.A1 rent chit and that he has unauthorisedly sublet or transferred the building to the second respondent in the Rent Control Petition. The name of the first respondent in the Rent Control Petition is Mr.Kunhiraman and that of the second CRP.1035/03 2 respondent in the Rent Control Petition, who is the alleged sub-lessee, is Mr.Sivadasan. Mr.Sivadasan remained ex-parte before the Rent Control Court. The contention of Sri.Kunhiraman, the tenant, was that there is no sub-lease that he continued and retained possession of the building; that Sivadasan was his employee till 1992 and thereafter he and Sivadasan fell apart. Kunhiraman's explanation regarding Ext.A5 agreement which was relied on by the landlady to prove the case of the sub-lease was that the stamp paper on which Ext.A5 agreement is written and also the plain paper on which Kunhiraman's signature appears was kept in the schedule premises to be given to Canara Bank from who there was a proposal to avail a loan and that Sivadasan took away the stamp paper as well as the blank signed paper and has created Ext.A5 in collusion with the landlady. The Rent Control Court enquired into the matter and at trial the evidence consisted of Ext.A1 the rent chit governing the tenancy, Exts.A2 and A3 copies of the lawyer notice sent to the respondents in the RCP, Exts.A4 and A4(a) postal acknowledgment cards signed by the respondents in the RCP and Ext.A5 agreement between first respondent and second respondent in the RCP, Ext.A6 receipt issued by the first CRP.1035/03 3 respondent in the RCP in favour of the second respondent against payment of rent and the oral evidence of PWs 1 and 2 on the side of the landlady. PW2 significantly was none other than the alleged sub-lessee, who remained ex-parte in the case. On the side of the first respondent the evidence consisted of Ext.B1 letter sent by the alleged sub-lessee to Mr.Prabhakaran, RW1, son of first respondent. Exts.B2 and B3 were documents which would show that in October 1995 the local branch of the Canara Bank had advanced a loan to Sri.V.P.Dinesan, brother of RW1. The Rent Control Court, on making a thorough analysis of the entire evidence, came to the conclusion that the first respondent had unauthorisedly sublet or transferred the building in question to the second respondent, and that the first respondent was totally unsuccessful in proving that after the date of Ext.A5 the jural relationship between the first respondent and second respondent was continuing as that of employer and employee. Accordingly the Rent Control Court ordered eviction on the ground under Section 11(4)(i). 3. The Appellate Authority considered an appeal preferred by the first respondent, made a re-appraisal of the evidence and would reverse the finding of the Rent Control CRP.1035/03 4 Court. The Appellate Authority also practically agreed with the finding of the Rent Control Court that Ext.A5 agreement shows an apparent transfer or sub-lease of the building by the first respondent to the second respondent. But, according to that authority, in order that eviction ground under Section 11 (4)(i) is established, it is necessary that the landlady proves that the sub-lease or unauthorised transfer is in existence at the time of issuance of statutory notice, Ext.A3. The Appellate Authority has opined that if as a matter of fact, it was the second respondent in the Rent Control Petition who was in possession of the building at the time when the Rent Control Petition was instituted and that the landlady could have taken out a commission to prove the same. The authority also would find fault with the landlady for not having examined the neighbouring shopkeepers for proving that it is the alleged sub-tenant who is in physical possession, and not the tenant. In this context the Appellate Authority would highlight certain statements in PW1's evidence to the effect that she has seen the children of Kunhiraman, the first respondent, inside the petition schedule building. The Appellate Authority would also observe that possibilities of the second respondent colluding with the landlady for defeating the interests of his CRP.1035/03 5 former employer cannot be ruled out. 4. In this revision under Section 20 the landlady has raised various grounds assailing the judgment of the Appellate Authority. It is urged that the finding of the Appellate Authority that there is no objectionable sub-lease and that the sub-lease, at any rate, was not in existence at the time when the Rent Control Petition was instituted, is illegal, irregular and improper. It is urged that re-appreciation of the entire evidence by the Appellate Authority was in an erroneous fashion and this resulted in prejudice to the landlady. 5. Sri.C.P.Mohammed Nias, learned counsel for the revision petitioner addressed us very elaborately on the various grounds raised in the memorandum of appeal. Mr.Nias submitted that the explanation of the first respondent regarding Ext.A5 cannot stand judicial scrutiny even for a moment. It is not disputed that Ext.A5 contains signature of the first respondent in the Rent Control Petition. Ext.A6 is also admittedly a receipt issued by the first respondent in favour of the second respondent. If the relationship between the first respondent and second respondent was that of employer and employee, there cannot be any occasion for CRP.1035/03 6 second respondent paying rent to first respondent. The probability of second respondent paying hire charges of the sewing machine is also remote since it is for the employer to provide the employee with sewing machine. The approach of the learned Appellate Authority, according to the learned counsel, was too technical. The statutory authorities under the Rent Control Act who are expected to be governed by the principles of justice in good conscience are not expected to show this much of indulgence towards subletting tenants, so submitted the learned counsel. 6. Sri.V.T.K.Mohanan, learned counsel for the first respondent tenant would resist all the submissions of Mr.Nias. He submitted that the unusual circumstance of the subtenant giving evidence as a witness on the side of the landlord and his supplying the details of Ext.A5 document to the landlord even before the landlord issues statutory intimation notice Ext.A3, demonstrates to the very hilt that there is collusion between the landlord and PW2. Mr. Mohanan submitted that PW2's testimony should not have been attached any credit worthiness in the circumstance of this case. According to Mr.Mohanan, PW2 himself conceded in evidence that only for a period of four months after Ext.A5 CRP.1035/03 7 was executed, he continued in the building. Mr.Mohanan submitted that the genuine case of the tenant was that on account of a difference of opinion that cropped up between the tenant and the subtenant, the subtenant was sent away from the building in July 2007 itself, which is actually prior to the issuance of Ext.A3. Sri.Mohanan further submitted that the appreciation of the evidence on record in the case by the Rent Control Court was highly improper and the Appellate Authority being the final fact finding authority under the statutory scheme only correctly appreciated the evidence and arrived at correct findings. Mr. Mohanan reminded us of the limits of jurisdiction under Section 20 and submitted that in this jurisdiction this court is not expected to make a reappraisal of the evidence. 7. We have considered the submissions addressed at the bar. We have gone through the pleadings raised by the parties and we have made a re-appraisal of the evidence on record particularly of those items of evidence to which our attention was drawn by the learned counsel in their submissions. Ext.A5, in our opinion, is a very crucial document. It is dated 19th May, 1995. It is written on stamp paper purchased in the name of Sri.Kunhiraman the first CRP.1035/03 8 respondent, and on three appended sheets. The parties to Ext.A5 are the respondents in the Rent Control Petition. The first party is Kunhiraman the first respondent, and the genuineness of his signature in Ext.A5 is admitted by RW1, the first respondent's son. Eaxt.A6 is another document. This is a receipt against payment of rent (hmSI) from the second respondent by the first respondent. The explanation of RW1 was that hmSI referred to Ext.A6 is not hmSI for building, but it is hmSI for sewing machine. Ext.B1 is one document which was relied on much by the first respondent before the authorities below. Ext.B1 is a letter written by the second respondent in the RCP to RW1 the son of the first respondent. Ext.B1 certainly proves that at the time when Ext.B1 is written there was employer-employee relationship between the first respondent and the second respondent in the RCP. Section 114(d) of the Evidence Act provides that, a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence. We will, for the purpose of this case, assume that Section 114(d) of the Evidence Act is attracted in this case which means that unless CRP.1035/03 9 contra evidence is adduced by the tenant or the landlady it will have to be presumed that the employer-employee relationship between the first respondent and the second respondent continues. But, we find that in Ext.A5 the landlady has produced convincing contra evidence. It is extremely difficult for us to accept the explanation of first respondent that the second respondent stole the stamp paper and the signed appended sheet presently forming part of Ext.A5 from the shop in question and has fabricated Ext.A5 in collusion with the landlady. We are of the view that it is only for the purpose of giving surface credibility to the above explanation that the first respondent has introduced Ext.B3 and B4 into the evidence. Exts.B3 and B4 at best only shows that the brother of RW1 availed a loan from Canara Bank several months after Ext.A5 was apparently executed between respondents 1 and 2. We also see from the evidence that second respondent at the time when he was working as employee under first respondent was abstaining from duty off and on. It appears to us that second respondent was a very talented tailor and that first respondent was finding it difficult to successfully conduct his business without the help of first respondent as a result of which second respondent had CRP.1035/03 10 acquired considerable bargaining power with first respondent. May be second respondent exploited that bargaining power and could ensure that the first respondent agrees to have the arrangement under Ext.A5 with second respondent under which first respondent is gaining to a certain extent as he is getting much more than what he is liable to pay as rent to the landlady. For coming to this conclusion we take into account the probative value of Ext.A6. Ext.A6 is a receipt against payment of rent. We cannot even for a moment countenance the explanation of the first respondent that Ext.A6 is a receipt against payment of hire charges of sewing machine. In all probability Ext.A6 is a receipt against payment of rent due from second respondent to first respondent by virtue of Ext.A5. 8. The learned Appellate Authority has observed that even if Ext.A5 is accepted as a genuine document, then also RCP should fail for want of evidence regarding continuance of the unauthorised sub-lease or transfer at the time of institution of RCP. We have carefully scanned PW1's oral evidence. It is seen that the suggestions made in cross- examination to PW1 are to the effect that the second respondent continues to be in the petition schedule building CRP.1035/03 11 (of course, the suggestion is of continuing as an employee). When the physical presence of the second respondent is conceded by the cross-examiner, then in the teeth of Ext.A5 it will have to be held that his physical presence is not in his capacity as an employee but is by virtue of Ext.A5. The approach of the learned Appellate Authority was too technical and the same will not receive acceptance at our hands. When physical presence of the alleged sub-tenant is admitted by the tenant, then the jural relationship between tenant and sub- tenant being a matter which is especially within the knowledge of tenant and the sub-tenant, the burden will shift to the tenant to show that the same is that of an employer and employee. The tenant could have discharged that burden by producing convincing evidence or even by examining the neighbours. The Appellate Authority was not justified in placing all the blame on the landlady for not examining the neighbours. 9. Result of the above discussion is that the finding of the Appellate Authority regarding the jural relationship between the first respondent and the second respondent is liable to be vacated. We vacate that finding and restore the finding of the Rent Control Court. As a consequence, order of CRP.1035/03 12 eviction under Section 11(4)(i) will stand passed against both the respondents. The CRP is allowed however without any order as to costs. 10. Sri.V.T.K.Mohanan after we pronounced this order requested that at least two years time be granted to the additional respondents 3 to 8 for surrendering the premises as it will be very difficult for him to identify another building for shifting the business. The above request is opposed very stiffly by Mr.Nias who submitted that it will not be equitable to grant time to a tenant who has sublet. Ordinarily, we would not have granted time to a tenant who is liable to be evicted on the ground of subletting. But we feel that on the totality of the facts and circumstances which attendant on this case, there is justification for giving an unusually long period of time to the additional respondents 3 to 8 to surrender the premises. We therefore direct the execution court not to order and effect delivery of the building till 1-8-2011, provided the following conditions are satisfied by the additional respondents 3 to 8. 11. The additional respondents shall file an affidavit before the execution court or the rent control court, as the case may be, within one month from today undertaking to CRP.1035/03 13 give peaceful surrender of the building in question to the revision petitioner landlord on or before 1-8-2011 and undertaking further that arrears of rent if any, due as on today will be discharged and that occupational charges at the rate of Rs.110/- per mensem will also be paid to the revision petitioner without fail as and when the same falls due. It is made clear that the respondents will be eligible for benefit of time as granted above is only if the additional respondents file the affidavit on time. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb/ksv