IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 RCRev..No. 236 of 2008() ------------------------ RCA.18/2007 of D.C. & SESSIONS COURT,KOZHIKODE RCP.168/2004 of ADDL.M.C.,KOZHIKODE-I .................... REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------------ 1. P.K.SUHARA,AGED 63 YEARS, W/O.LATE IBRAHIM KUTTY HAJI, PUZHAKKKARAKUNIYIL HOUSE, NEW MAHE (P.O0, KALLAI AMSOM DESOM, THALASSERI TALUK, KANNUR DISTRICT. 2. K.ABDURAHIMAN, S/O.MUHAMMED HAJI, HOTEL NEW SEENATH, KALLAI(PO), PANNIANKARA AMSOM DESOM, KOZHIKODE-673003. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): RESPONDENTS/PETITIONERS -------------------------- 1. K.P.ASHRAF, AGED 30 YEARS, S/O.KUNHALI, THACHAMKOTTUMMAL HOUSE, MERIKUNNU.P.O, CHEVAYOOR AMSOM DESOM, KOZHKODE TALUK-673017. 2. T.K.HAIRUNNISA, AGED 32 YEARS, D/O.MUHAMMED, PULLIKKARAPURAYIPARAMBA HOUSE, KALLAI(PO), PANNIANKARA AMSOM DESOM, KOZHIKODE TALUK-673003. 3. K.P.MUHAMMADALI, AGED 48 YEARS, S/O.KUNHI, SWASTHAM HOUSE, NEELLIKODE AMSOM DESOM, KOZHIKODE-673016. RCR.No.236/08 4. P.K.GAFOOR, S/O.MOIDEEN, SHOWN IN THE CAUSE TITLE AS HAVING HIS ADDRESS AT HOTEL NEW SEENATH, KALLAI(PO),PANNIANKARA AMSOM DESOM, KOZHIKODE-673003 AND ACTUALLY HAVING HIS ADDRESS AT PALLIKANDY VEEDU, NADUVATTOM AMSOM, BEYPOR DESOM, P.O.NALLALAM, KOZHIKODE TALUK. 5. M.ABDUL NASSAR, AGED 35 YEARS, S/O.MOOSA, SHOWN IN THE CAUSE TITLE AS HAVING HIS ADDRESS AT HOTEL NEW SEENATH,KALLAI(PO)PANNIANKARA AMSOM DESOM, KOZHIKODE-673003 AND ACTUALLY HAVING HIS ADDRESS AT MANOTH HOUSE, PARAKKAL, P.O.MAHE, PONDICHERRY STATE. ADV. SRI.R.SUDHISH FOR R1 TO 3 SMT.M.MANJU FOR R1 TO R3 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & M.C.HARI RANI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No. 236 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of February, 2009 ORDER Pius.C.Kuriakose, J. The tenant and the alleged sub tenant against whom order of eviction was concurrently passed by the rent control court and the appellate authority are the petitioners in this revision petition under Section 20 of the Kerala Building (Lease and Rent Control) Act 1965, Act 2 of 1965. No arguments were raised before us in the context of the order passed under Section 11(2)(b). As regards that order, we will only observe that it is open to the petitioners to have that order set aside by making the requisite payment or deposit within a period of thirty days from today and filing necessary application under Section 11(2)(c) before the rent control court. 2. The shorn of details, the landlord's case in the context of the ground for eviction under Section11(4)(i) was that the revision petitioner tenant has sub let the premises to the second revision petitioner, the alleged sub tenant. The prominent defence of the RCR.No.236/08 2 revision petitioners who contested the proceedings jointly was that the jural relationship between the revision petitioners is not that of tenant and sub tenant, instead, the same is that of employer and manager. 3. The evidence at trial before the rent control court consisted of Exts.A1 to A10 and the oral testimonies of PW1 and PW2 apart from Exts.C1 and C2 on the side of the landlord while the same on the side of the revision petitioners consisted of Exts.B1 to B21 and the oral testimony of RW1. The Advocate Commissioner who had conducted the local inspection was also examined as CW1. The rent control court on evaluation of the evidence concluded that the jural relationship between the revision petitioners is that of tenant and sub tenant and not that of employer and manager. Accordingly order of eviction was passed under Section11(4)(i). The rent control appellate authority would re-appreciate the evidence and concur with the conclusions of the rent control court. 4. Before us, Sri.P.M.Pareeth, learned counsel for the petitioners would make elaborate submissions on the basis of the grounds raised in the memorandum of revision. He would assail the RCR.No.236/08 3 conclusions of the rent control court and the appellate authority. Drawing our attention to Exts.B1 to B21, the learned counsel would submit that all the documents in relation to the business which is being carried on in the schedule premises will show that the business belongs to the first revision petitioner. There is no transfer of possession by the first revision petitioner in favour of the second revision petitioner, so submitted the learned counsel. 5. Sri.R.Sudhish, learned counsel for the respondent landlord would resist the submissions of the learned counsel for the petitioners and would support the judgment of the courts below on the reasons stated therein. 6. We have anxiously considered the rival submissions addressed before us. We have carefully gone through the orders passed by the courts below particularly the order of the rent control court which under the statutory scheme is the final court on facts. We are of the view that there is no warrant at all for interfering with the judgment of the rent control appellate authority having regard to the well known contours of this court's jurisdiction under Section 20 of Act 2 of 1965. RCR.No.236/08 4 In this jurisdiction, this court does not sit in appeal over the findings of fact entered by the rent control appellate authority. This court's enquiry is whether those findings are vitiated by any illegality, irregularity or impropriety. 7. Having gone through the order of the rent control appellate authority, we find that all the findings entered therein are founded on evidence which was actually available on record. The probabilities of the matter also have been correctly kept in mind by the learned appellate authority. As rightly noticed by the appellate authority, not even a scrap of paper was produced by the first revision petitioner to show that the second revision petitioner is the manager and that he is being paid any remuneration. The first revision petitioner did not care to produce the accounts relating to the hotel business which she claims to be carrying on in the suit premises. The non-production of the accounts according to us will justify the drawal of adverse inference against the first revision petitioner. As noticed by the appellate authority, the oral testimony of CPW1- the first revision petitioner will show that the first revision petitioner absolutely has no idea regarding RCR.No.236/08 5 the hotel business which is being carried on in the suit premises. We also feel that the non-examination of the second revision petitioner , the alleged sub tenant is fatal from the point of view of the revision petitioners. If the second revision petitioner was the manager of the first revision petitioner, the petitioners could have adduced atleast the oral evidence of the second revision petitioner, the alleged sub tenant. The non-examination of the alleged sub tenant is yet another circumstance which will justify the drawal of adverse inference against the petitioners. For all these reasons, we are not inclined to interfere with the impugned orders. Revision petition fails and the same will stand dismissed. Though in the nature of the ground on which eviction order has been passed, this court will not be normally inclined to show any indulgence, considering the request of the learned counsel for the petitioners, we are inclined to grant one month's time from today to the revision petitioners to put the respondent back in possession of the schedule premises on condition that the petitioners file a joint affidavit before the execution court stating that they will unconditionally put the RCR.No.236/08 6 respondent in peaceful possession of the schedule building on or before 05/03/1009 and further that they will discharge the entire arrears of rent as presently found to be due by the authorities below in the context of ground under Section11(2)(b) including the rent which falls due till 05/03/2009. If the execution court notices such an affidavit filed by the petitioners within seven days from today, that court will adjourn the execution petition to 06/03/2009. PIUS.C.KURIAKOSE JUDGE M.C.HARI RANI JUDGE sv. RCR.No.236/08 7