IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 23RD DECEMBER 2010 / 2ND POUSHA 1932 RCRev..No. 249 of 2007(D) ------------------------------ RCA.82/2006 of RENT CONTROL APPELLATE AUTHORITY & II ADDL. DISTRICT COURT, KOZHIKODE RCP.99/2001 of PRL.M.C.,KOZHIKODE-II .................... REVISION PETITIONERS/RESPONDENTS/RESPONDENTS -------------------------------------------------------------- 1. SOLY JOHN, AGED 40 YEARS, D/O MICHAEL, PROFESSIONAL ASSISTANT, KOCHIN UNIVERSITY LIBRARY, KALAMASSERY, ERNAKULAM. 2. V.T.CHACKO, AGED 54 YEARS, S/O THOMAS, VAYALIL VEETTIL, ENGAPUZHA AMSOM, PADOOR DESOM, KOZHIKODE. BY ADV. SRI.A.BALAGOPALAN SMT.LAKSHMI.T. SRI.K.SANEESH KUMAR SMT.KALA G.NAMBIAR RESPONDENT(S): APPELLANTS/PETITIONERS -------------------------------------------------- 1. A.J.JOHN, AGED 52 YEARS, S/O JOHN, AMIKKATTU KUZHIYIL, ENGAPUZHA AMSOM, PADOOR DESOM, KOZHIKODE TALUK. 2. MOLY A.J., AGED 50 YEARS, D/O JOHN, AMIKKATTU KUZHIYIL, ENGAPUZHA AMSOM, PADOOR DESOM, KOZHIKODE TALUK. RCR.249/07 -2- 3. LICY, AGED 44 YEARS, D/O JOHN AMIKKATTU KUZHIYIL, ENGAPUZHA AMSOM, PADOOR DESOM, KOZHIKODE TALUK. 4. LEENA, AGED 38 YEARS, D/O JOHN AMIKKATTU KUZHIYIL, ENGAPUZHA AMSOM, PADOOR DESOM, KOZHIKODE TALUK. 5. CHINNAMMA, AGED 70 YEARS, W/O JOHN AMIKKATTU KUZHIYIL, ENGAPUZHA AMSOM, PADOOR DESOM, KOZHIKODE TALUK. ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 23/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. No.249 of 2007 ------------------------------------------------ Dated this the 23rd day of December, 2010 ORDER Balakrishnan, J The tenant and the alleged sub tenant are the revision petitioners. The landlords sought eviction of the revision petitioners under Section 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965 [hereinafter referred to as the “Act”]. The learned Rent Controller dismissed the RCP. The appeal preferred by the landlords was allowed granting eviction under Section 11(2)(b), 11(3) and 11(4)(i) of the Act. The revision petitioners contend that the sub lease alleged by the landlords is not true. It is contended that the bona fide need alleged by the landlords has not been established and so, the second revision petitioner is entitled to the benefit of the second proviso to sub Section (3) of Section 11 of the Act. 2. Brief facts necessary for the case can be stated thus:- R. C. R. No.249 of 2007 -2- The first respondent let out the petition schedule room to the first revision petitioner on 20/02/95 for a monthly rent of Rs.250/- for conducting telephone booth. Subsequently, when the first revision petitioner got employment in Cochin University, the second revision petitioner approached the landlords as first revision petitioner found it difficult to conduct the telephone booth as she is a public servant. As the second revision petitioner approached the landlords, permission was granted by the first respondent herein to conduct a telephone booth in the petition schedule building. But the second revision petitioner was not treated as a tenant. 1st revision petitioner sub leased the petition schedule building to 2nd petitioner. The sublease is an objectionable one. Notice as contemplated under Section 11(4)(i) was sent to the tenant and the sub tenant. As regards the claim under Section 11(3), it was contended that the first respondent (the first petitioner in the RCP) was having no avocation. He is a diploma holder in electrical engineering and that he had sufficient experience in conducting electric repair work and he bona fide needs to start an electrical repair shop in the petition schedule R. C. R. No.249 of 2007 -3- room. 3. The pleading regarding eviction sought under Section 11 (2)(b) are not stated here since it is submitted at the Bar that the order under Section 11(2)(b) can be got vacated resorting to Section 11(2)(c) of the Act. 4. The claim under Section 11(3) and 11(4)(i) was stoutly opposed by the revision petitioners contending that the second revision petitioner was granted lease of the petition schedule shop room by the first respondent herein and that there was no sub lease at all. It is contended that the transfer of the tenant's right in favour of the second revision petitioner is permitted as per the consent letter signed and issued by the first respondent. It is also contended that the first respondent herein has got landed properties and that the need projected by him that he wants to conduct an electrical workshop in the petition schedule room is only a pretext for eviction. The revision petitioners also contended that they are entitled to the protection under the second proviso to sub Section 3 of Section 11 of the Act. 5. The learned counsel for the revision petitioners R. C. R. No.249 of 2007 -4- vehemently argued mainly focusing on Ext.B1 the consent letter signed and issued by the first respondent herein. That document is dated 11/02/2000. Though the learned counsel for the landlords submitted that the signature alone was put by the first respondent/landlord and that the contents were not written or prepared at his instance that contention is seen to be incorrect since there is no sufficient pleading to that effect nor is there any effective cross examination on that point. Therefore, the plea raised by the respondents that Ext.B1 is not valid and binding cannot be sustained. On the other hand, even the landlords proceeded on the premise that it was by virtue of Ext.B1 that the second revision petitioner could start the telephone booth in the petition schedule room. The attempt made by the learned counsel for the landlords is that Ext.B1 does not state the details regarding the terms of the alleged lease in favour of Sri.V.T.Chacko, the second petitioner herein. The solitary word in Ext.B1 that the building was let out to Sri.Chacko cannot be construed to mean that there was actual lease in favour of Chacko. According to the learned counsel, it is only a loose R. C. R. No.249 of 2007 -5- expression, used in that context, without intending to grant lease in favour of Chacko. According to the landlords, it was only a permission given to the Chacko to conduct the telephone booth which was thitherto conducted by Smt.Soly John the first revision petitioner. The last sentence seen in Ext.B1 that he (the landlord) had no objection in the Panchayath issuing licence in favour of Chacko for conducting the telephone booth could only mean that PW1 had no objection in installing the telephone booth therein. But on going through Ext.B1 in entirety, it can be seen that there was actually a transfer of the interest of the tenant Smt.Soly John in favour of Chacko. When it was not objected to but approved and recognized by PW1 on behalf of the landlords it can be said that it was an authorised transfer of the tenancy right. But Ext.B1 cannot be construed to hold that there was a sub lease by Smt.Soly John in favour of Chacko. That apart there is no case for the revision petitioners that the lease deed in favour of Smt.Soly John did permit subletting of the tenanted premises in favour of another person. The learned Appellate Authority has found that the lease deed admittedly does not permit the tenant R. C. R. No.249 of 2007 -6- to sub lease the tenanted premises and as such, since Sri.V.T.Chacko, the second revision petitioner herein is admittedly in possession of the petition schedule building and since he claims to be a tenant it can very well be inferred that there was objectionable subletting as pleaded by the landlords is true. On a thorough marshalling of Ext.B1, it can be found that it was not actually a sub lease or fresh lease since the terms of lease in favour of sub tenant are not mentioned. Similarly, it was also not stated that Sri.Chacko was to pay rent directly to the landlords or what actually was the rent to be paid by Chacko. But at the same time, it can be found that the tenancy right in favour of Smt.Soly John was permitted to be transferred to Sri.Chacko and if that be so, it can be found that the transfer by the tenant in favour of Sri.Chacko, was an authorised one. If that be the position, it cannot be said that it was an objectionable transfer so as to warrant an order of eviction under Section 11(4)(i) of the Act. As such, the order of eviction passed by the learned Appellate Authority under Section 11(4)(i) is liable to be reversed. R. C. R. No.249 of 2007 -7- 6. As regards the bona fide need projected by the landlords the specific case put forward in the Rent Control Petition is that the petition schedule building is bona fide required for PW1 who has no job or avocation to start an electrical shop. PW1 has given evidence in tune with the averments made in the Rent Control Petition. Ext.A4 the certificate issued would show that he had got diploma in electrical trade. Ext.A5 would show that for some time, he had worked in a co-operative society as Electrician and he had gained experience in electrical work. Ext.A4 certificate and Ext.A5 experience certificate would prove that he has got the required qualification and experience in conducting the trade. The evidence so given by PW1 could not be effectively controverted. 7. The contention raised by the tenant that PW-1 is having 2 acres of landed properties and therefore the need projected by him that he wants to start an electrical workshop is not genuine or honest cannot be countenanced at all. Even if it is accepted that PW-1 is having landed property that does not deter him from conducting a trade of his own especially when he has got sufficient qualification and experience in that field. To have an R. C. R. No.249 of 2007 -8- independent job or avocation for earning his livelihood is an honest and genuine desire. Ext.A5 would show that he lost his job in 1999. Considering all the aspects it can be found that the bonafide need projected by the landlord is true. It was rightly found so by the Appellate Authority. 8. Regarding the benefit of the second proviso to Section 11 (3), it is contended by the revision petitioners that the learned Appellate Authority proceeded on the premise that since second revision petitioner is only a sub-lessee, he is not entitled to claim protection of the second proviso to Section 11(3). Having found that the transfer in favour of the second revision petitioner was an authorised one, he cannot be denied the right to get the protection under the second proviso to Section 11(3), the learned counsel for the petitioner argues. Sri.A.Balagopalan, learned counsel for the revision petitioners submits that since the court below proceeded on the premise that Sri.Chacko, the 2nd revision petitioner is only a sub-tenant the question whether the benefit of the second proviso to section 11(3) is available to second revision petitioner was not probed into in detail. That submission R. C. R. No.249 of 2007 -9- does not appear to be correct. In order to get the benefit of the second proviso to Section 11(3) the tenant is bound to prove both the limbs of the second proviso. Cogent and convincing evidence was let in by the landlord to show that there are so many vacant buildings available in the locality. That could not be countered by the tenants. Despite the fact that the burden is on the tenant to prove the ingredients, the landlord has chosen to produce positive evidence to show that there are so many vacant buildings available in the locality. Therefore, even if it is accepted that RW-1 Chacko is depending mainly on the income derived from the petition schedule building for his livelihood, still he cannot succeed in getting the protection of the second proviso to Section 11(3) for the reasons just mentioned above. Therefore, the order of eviction passed by the learned Appellate Authority under Section 11(3) of the Act is to be confirmed. 9. We notice that the rent presently paid is only Rs.350/-. It appears to be considerably low. Considering all the aspects of the matter we hold that the rent has to be slightly increased if the tenant is given time to vacate the premises. We thus fix the R. C. R. No.249 of 2007 -10- monthly rent to be paid by RW-1 second petitioner herein at Rs.500/- per month with effect from 1-1-2011. Regarding the order of eviction under Section 11(2)(b) passed by the Appellate Authority, the second petitioner can get that order vacated by resorting to Section 11(2)(c) of the Act. 10. In the result, the revision petition is partly allowed. The order of eviction passed under Section 11(4)(i) is set aside. But the order of eviction passed under Section 11(3) is confirmed. The petitioners are granted time till 31-12-2011 to vacate the petition schedule building on the following conditions. 11. The second revision petitioner shall file an affidavit before the execution court or the Rent Control Court, as the case may be, undertaking to surrender vacant possession of the petition schedule premises to the respondents on or before 31- 12-2011 and to pay arrears of rent, if any, within one month from today. It shall be further undertaken that occupational charges at the rate of Rs.500/- will be paid regularly till surrender of the schedule premises. The affidavit as directed above shall R. C. R. No.249 of 2007 -11- be filed within a period of one month from today. We make it clear that the revision petitioner will be entitled for the benefit of time granted above, only if he files the affidavit and honours the undertakings therein. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/- & ksv/-