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 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 RCRev..No. 269 of 2008 ------------------------ RCA.12/2006 of ADDL. DISTRICT COURT, N. PARUR RCP.4/2004 of MUNSIFF COURT, ALUVA .................... REVISION PETITIONERS/RESPONDENTS/RESPONDENTS ------------------------------------------------------ 1. MODY, S/O.THOMAS,CHENGAN(H),PERAMBRA DESOM,KANAKAMALA,KODAKARA VILLAGE,MUKUNDAPURAM TALUK,THRISSUR DIST,KANAKAMALA.P.O,PIN-68068,REP. BY HIS P/A HOLDER ANTONY S/O.C.T.ANTONY,CHENGAN HOUSE,PERAMBRA DESOM,KANAKAMALA,KODAKARA VILLAGE, THRISSUR. 2. ANTONY, S/O.C.T.ANTONY,CHENGAN HOUSE, PERAMBARA DESOM, KANAKAMALA KODAKKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 3. M.E.JACOB, S/O.EARAPPANESE, MANAVALAN HOUSE, KUZHOORKARA, THRUMKULAM VILLAGE, MUKUNDAPURAM TALUK, KUZHOOR, PIN-680742,REP.BY HIS P/A HOLDER, ANTONY S/O.C.T.ANTONY,CHENGAN HOUSE, PERAMBARA DESOM, KANAKAMALA,KODAKARA VILLAGE, THRISSUR. BY ADV. SRI.D.KISHORE SRI.LIJI.J.VADAKEDOM RESPONDENT(S): APPELLANTS/PETITIONERS ------------------------------------- 1. JOSE, S/O.JOSEPH, KIZHAKKUMTHALA HOUSE, ANGAMALY KARA, ANGAMALY.P.O. 2. CICILY JOSE, W/O.JOSE, ANGAMALY KARA, ANGAMALY P.O. ADV. DR.GEORGE ABRAHAM FOR R1 & 2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 28/7/2009, THE COURT ON 01/12/2009 PASSED THE FOLLOWING: I.A. 2442 of 2008 IN RCRev..No. 269 of 2008 ............. DISMISSED. 1.12.2009. SD/- PIUS C. KURIAKOSE, JUDGE SD/- P.Q.BARKATH ALI, JUDGE PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. ------------------------------------------------------- R.C.R. 269 OF 2008 ------------------------------------------------------- Dated: DECEMBER 1, 2009 O R D E R BARKATH ALI, J. Challenge in this revision under sec.20 of the Kerala Buildings (Lease and Rent Control) Act, filed by the tenants and the alleged sub- tenant is to the judgment of Rent Control Appellate Authority (Addl. District Judge), North Paravur, in RCA 12/2006 dated July 16, 2007 reversing the order of Rent Control Court (Munsiff), Aluva, in RCP 4/2004 dated April 12, 2006 and ordering eviction under sec.11(4)(i) of the Act. 2. Revision respondents/landlords who are husband and wife filed RCP 4/1994 before the Rent Control Court, Aluva seeking eviction under sec.11(2)(b), 11(4)(i), 11(4)(ii), 11(4)(v) and 11(8) of the Act alleging that the first revision petitioner/tenant has kept rent in arrears from June, 2002 onwards, that he sublet the shop room to respondents 2 and 3 in the RCP who are the revision petitioners 2 and 3 herein, that the tenant made some alterations in the shop room so as to destroy or reduce its value or utility materially and permanently, that the tenant is abroad and has ceased to occupy the shop room for more than six months continually without any reasonable cause and that the landlords bona fide need the petition schedule shop room to expand their business of furniture in the adjacent shop room. R.C.R. 269 OF 2008 2 3. The revision petitioners/the tenant and the alleged sub tenants resisted the claim contending that there are no arrears of rent, that the sub tenancy alleged is not true, that respondents 1 and 3 in the RCP were doing business in the shop room as partners of a firm, that as first respondent is abroad, he has executed a power of attorney in favour of second respondent in RCP to conduct the business, that he has not caused any damaged to the shop room and that he is still conducting business in the petition schedule shop room and that the need for additional accommodation put forward by the landlord is not genuine, that the income derived from the business conducted in the petition schedule shop room is the tenants main source of income and that there are no other suitable building in that locality for the tenant to shift his business. 4. Pws.1 to 3 were examined and Exts.A1 to A17 were marked on the side of the landlords and RW.1 was examined and Exts.B1 to B6 were marked by the tenants before the Rent Control Court. Commissioner's report and plan were marked as Exts.C1 and C1(a). The Rent Control Court on an appreciation of evidence dismissed the RCP finding that the landlord is not entitled for an order of eviction on all grounds claimed. On appeal by the revision petitioners/tenants the Appellate Authority confirmed the finding of the Rent Control Court under secs.11(2), 11(4)(ii) and 11(4)(v) of the Act, but set R.C.R. 269 OF 2008 3 aside and reversed the finding under sec.11(4)(i) of the Act and ordered eviction on the ground that the first revision petitioner/tenant has sublet the building to second revision petitioner finding that the power of attorney executed by the tenant in favour of second revision petitioner is not genuine and that the same was executed to camouflage the sublease in favour of second respondent. The tenant as well as the alleged subtenant have come up in revision challenging the said judgment of the Appellate Authority. 5. The counsel for respondents/tenants and the alleged subtenant argued that even at the inception, the business in the petition schedule shop room was conducted by the partnership firm between the first and third revision petitioners which is evident from the partnership deed Ext.B2 dated 25.11.1991 and that therefore the third revision petitioner cannot be treated as a subtenant. He further argued that the power of attorney Ext.B1 executed by the firm in favour of second revision petitioner is a valid one and that therefore the finding of the Appellate Authority that the same was created to circumvent the provisions of sec.11(4)(i) of the Act cannot be sustained and is liable to be set aside. The counsel for the landlords supported the judgment of the Appellate Authority. 6. The only question which arises for consideration is whether the order of eviction passed by the Appellate Authority under sec.11 R.C.R. 269 OF 2008 4 (4)(i) of the Act can be sustained. 7. As regards the third revision petitioner/third respondent in RCP is concerned, we are of the view that he cannot be treated as a sub-lessee. It is settled law and held in Ahammed Kabeer v. Salima Beevi (1992(1) KLT 735) that if the original tenant converts the business into a limited company or into a partnership retaining control, it does not amount to subletting or transfer and that if he retires or severs his connection with the partnership form, the same amounts to subletting. A Division Bench of this Court has further held in Ramamoorthy Rao v. Musthapha Rawther (2002(3)KLT 685) that if the partnership deed is a sham document and the real purpose is subletting, the disguised partnership deed need not be looked into. In the present case the tenant himself formed a partnership with third revision petitioner. The landlord has no case that the said partnership is a sham or false one. Therefore, the third revision petitioner cannot be treated as a sub-tenant. The finding of the Appellate Authority on this point is set aside. 8. The next question is whether Exts.B1, the power of attorney, executed by the revision petitioners 1 and 3 as partners of the firm to second revision petitioner was created to circumvent the provisions of of sec.11(4)(i) of the Act as held by the Appellate Authority. The counsel for the revision petitioners argued that Ext.B1 is a registered R.C.R. 269 OF 2008 5 power of attorney, that the wording therein is that of a general power of attorney, that further Exts.B2, B3, B4 and B6 the telephone bills of the shop room is still in the name of “M/s. Selections” and that therefore the finding of the Appellate Authority that the first revision petitioner subleased the premises to second revision petitioner is not correct and has to be set aside. The counsel for the landlord submitted that admittedly first respondent is abroad and that second respondent is doing the business in the petition schedule shop room and that under the guise of Ext.B1 power of attorney, the first respondent has sublet the shop room to the second respondent. 9. It is settled law and is held in Ramamoorthy Rao v. Musthapha Rawther (2002(3)KLT 685) and in Kochu Thressia v. Albert and Others (2007 (3) KHC 783) that sec.11(4)(i) tenant should part with exclusive possession or part of the premises for consideration without obtaining consent of the landlord and that then the burden is on the tenant and the sub tenant to prove that their occupation is not on the basis of any arrangement which is prohibited under sec.11(4) (i) of the Act. In the present case both sides have no case that the lease confers on the tenant a right to sublease the premises and that the landlord has consented for the alleged sub-letting. Admittedly first respondent is abroad and the business in the premises is being carried on by the second respondent on the strength of Ext.B1 power R.C.R. 269 OF 2008 6 of attorney executed by respondents 1 and 3. Therefore the question for consideration as stated earlier is whether the power of attorney Ext.B1 is only a legal device to carry on subletting. 10. The terms embodied in Ext.B1, the power of attorney, are extracted by the Appellate Authority in its judgment. The Appellate Authority has found that sweeping powers are given to second revision petitioner, that it is not provided therein that the second revision petitioner should submit any accounts to the firm, that the entire goods stored along with leased right is transferred to second revision petitioner and that therefore Ext.B1 was executed only to circumvent the sub lease in favour of the second revision petitioner. For several reasons we are unable to agree with the said finding of the Appellate Authority. Admittedly PW.1, when cross-examined, admitted that he had no knowledge about the alleged arrangement between the tenant and the second revision petitioner. On the other hand, Ext.B1 is a registered power of attorney. The second revision petitioner, the alleged sub-tenant is a close relative of the tenant. Therefore, it is quite natural that the tenant who has gone abroad had given the power of attorney in favour of the second revision petitioner. 11. That apart, Ext.B2, the partnership deed between the tenant and the third revision petitioner, still exits. Ext.B3 is the telephone bill with respect to the petition schedule building for the R.C.R. 269 OF 2008 7 period 1.1.2008 to 28.2.2008 in the name of the tenant. Ext.B4 is the registration certificate regarding the business conducted in the shop room in the name of the tenant which is renewed and valid upto 31.12.2006. Ext.B6 series municipal tax receipts are also in the name of the tenant. It is clear from the above that the tenant along with the third revision petitioner is still conducting the business in the name “M/s. Selections” in the petition schedule shop room. The landlord has failed to show that the second revision petitioner is doing the business now in the petition schedule shop. That being so, we are of the view that the landlord has failed to prove that Ext.B1 power of attorney was created by the tenant to cover up the alleged sub lease in favour of the second revision petitioner and has failed to prove the alleged sub lease in favour of the second revision petitioner. That being so, the finding of the Appellate Authority that the tenant has sub leased the premises to the second revision petitioner has to be set aside and the order of the Rent Control Court that the landlord is not entitled to an order of eviction under sec.11(4)(i) of the Act has to be restored. 12. There is another aspect. Now the rent of the petition schedule building is only Rs.1500/- per month which appears to be very low. The counsel for the landlord would say that at present the said shop room would fetch a monthly rent of Rs.10,000/-. On the R.C.R. 269 OF 2008 8 other hand, the counsel for the revision petitioner would submit that the said room would fetch only a rent of Rs.5000/- per month if let out. Taking into account the fact that the building is located in Angamaly town which is a busy area, we are of the view that the rent of the said shop room can be fixed at Rs.6000/- per month from 1.12.2009 onwards. 13. Thus the revision petition is allowed. The impugned judgment of the Appellate Authority that the landlord is entitled to evict the tenant under sec.11(4)(i) of the Act is set aside and the RCA is dismissed. The order of the Rent Control Court dismissing the RCP is restored. The tenant shall pay rent at the rate of Rs.6000/- per month from 1.11.2009 onwards. The parties shall bear their own cost. We clarify that re-fixation of rent as done above is without prejudice to the right of either party to approach the Rent Control Court for fixation of fair rent and that once fair rent is duly fixed, the rent payable will be the fair rent so fixed. PIUS C. KURIAKOSE, JUDGE P.Q. BARKATH ALI, JUDGE mt/-