IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 RCRev..No. 450 of 2005 --------------------------- RCA.1/1999 of DISTRICT COURT, THALASSERY RCP.171/1996 of RENT CONTROL COURT, THALASSERY .................... REVISION PETITIONER/APPELLANT/PETITIONER ----------------------------------------------------- C.E.VALSALA, D/O.CHATHAMBALLI KUNHIRAMAN, RESIDING AT VADAKKUMBAD AMSOM MANNAYAD DESOM, THALASSERY TALUK. BY ADV. SRI.CIBI THOMAS RESPONDENT(S): RESPONDENTS/RESPONDENTS ------------------------------------------------------- 1. P.CHANDRAN, S/O.JANAKI, NEAR OLD KODUVALLY BRIDGE, P.O.NETTUR, THALASSERY. 2. P.REGHUNATH, S/O.JANAKI, NEAR OLD KODUVALLY BRIDGE, P.O.NETTUR, THALASSERY. 3. P.PURUSHOTHAMAN, S/O.JANAKI, NEAR OLD KODUVALLY BRIDGE, P.O.NETTUR, THALASSERY. 4. P.CHANDRAMATHI BALAKRISHNAN, D/O.JANAKI, NEAR OLD KODUVALLY BRIDGE, P.O.NETTUR, THALASSERY. 5. P.KAMALA, D/O.JANAKI, NEAR OLD KODUVALLY BRIDGE, P.O.NETTUR, THALASSERY. RCRev..No. 450 of 2005 -2- 6. P.GEETHA, D/O.JANAKI, NEAR OLD KODUVALLY BRIDGE, P.O.NETTUR, THALASSERY. 7. P.USHA, D/O.JANAKI, NEAR OLD KODUVALLY BRIDGE, P.O.NETTUR, THALASSERY. 8. MAHIJA, D/O.JANAKI, NEAR OLD KODUVALLY BRIDGE, P.O.NETTUR, THALASSERY. 9. KARUNAN, NEAR OLD KODUVALLY BRIDGE, P.O.NETTUR, THALASSERY HOTEL CHANDRAVILAS. (R1 TO R8 ARE THE LR'S OF DECEASED PUTHUSSERIKANDY JANAKI0. ADV. SRI.A.MOHAMED MUSTAQUE FOR R1,2,4,5,9 SRI.CHANDRAN CHANDROTH FOR R1,2,4,5,9 SRI.U.P.BALAKRISHNAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ R. C. R. No.450 of 2005 ------------------------------------------------ Dated this the 14th day of July, 2011 ORDER Pius C. Kuriakose, J Under challenge in this revision filed by the landlady is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed by the Rent Control Court on the ground under sub Section 3 of Section 11 and ordering eviction on the ground of subletting in reversal of the order under that ground which was declined by the Rent Control Court. 2. We have heard Sri.Cibi Thomas, the learned counsel for the revision petitioner and Sri.Balakrishnan U.P., the learned counsel for the landlord in detail. We have gone through the order of the Rent Control Court and the judgment of the Appellate Authority. We shall first deal with R. C. R. No.450 of 2005 -2- the order of eviction which is declined concurrently by the statutory authorities on the ground under sub Section 3 of Section 11. Having gone through the judgment of the Appellate Authority which under the statutory scheme is the final court on facts, we are of the view that there is no warrant for invocation of the revisional jurisdiction under Section 20. In this jurisdiction, this Court is not ordinarily expected to make a reappraisal of the evidence for the purpose of substituting factual conclusions arrived at by the fact finding authorities. According to us, the finding entered by the Rent Control Appellate Authority that the bona fides of the need has not been established and that the first proviso to sub Section 3 of Section 11 will entail rejection of the claim under Section 11(3) are findings founded on evidence available on record. Hence, we confirm the order of the Appellate Authority declining eviction on the ground R. C. R. No.450 of 2005 -3- under sub Section 3 of Section 11. 3. We shall now deal with the order of eviction which is declined by the Appellate Authority on the ground under Section 11(4)(i). In this context, the allegation of the landlord was that the tenants (who are legal representatives of the original tenant by name Kunjappu) are not in possession of the petition schedule building where a tea shop is conducted. According to the landlord, the building has been sublet or unauthorisedly transferred to one Karunan the 10th respondent in the RCP. The tenants defence was that Karunan is not a sub lessee or transferee but Karunan is an employee of the tea shop even from the days of the original tenant Kunjappu. The Rent Control Court on appreciating the evidence adduced by the parties which consisted inter alia of the oral evidence of Karunan as RW2 came to the conclusion that the jural status of Karunan in R. C. R. No.450 of 2005 -4- the building was that of a sub lessee. However, taking the view that the landlord has acquiesced at this unauthorised transfer or sublease the Rent Control Court declined eviction. 4. The learned Appellate Authority on the contrary on making a reappraisal of the evidence has set aside the finding of the Rent Control Court that the landlady had acquiesced at the unauthorised transfer or subletting. Instead, the Rent Control Appellate Authority on re- appreciating the evidence adduced by the landlady's husband as PW1 would came to the conclusion that the jural relationship between the tenant and the alleged sub tenant is that of an employer and employee. In this context, the learned Appellate Authority has highlighted in the judgment the following portions of the oral evidence of PW1. R. C. R. No.450 of 2005 -5- “10-þmw {]Xn IcpW³ Ipªm¸p DÅ Imet¯ AhnsS tPmen sN¿p¶p. Abmsf Adnbmw. (Q) hnizkvX\mb tPmen¡mc\mWv? (A) AsX. (Q) Ipªm¸p DÅt¸mÄ, Ipªm¸p AhnsS Cevem¯ kab¯pw Ipªm¸p DÅXv t]mse AbmÄ I¨hSw \S¯p¶p? (A) AsX................” 5. In view of the divergence in the finding of the two statutory authorities in the context of ground under Section 11(4)(i), we made a reappraisal of the evidence adduced in the case to the extent it pertains to the ground under Section 11(4)(i). It has come out in evidence that there is a daily turnover of ` 650/- in the tea shop business that is being conducted in the building. It has also come out in evidence that on all the three occasions the Commissioner visited the building the tenant was not to be seen, and the alleged sub lessee alone was seen in the building. Physical presence of the alleged sub lessee in the building continuously is not disputed. We feel that when the tenant R. C. R. No.450 of 2005 -6- has raised a specific contention regarding the juristic status of the alleged sub lessee - that he is an employee, the tenant had the obligation of producing documents to prove the above juristic status. Of course, the alleged sub lessee as RW2 gave evidence that he is getting daily wages of ` 75/-. According to us, if as a matter of fact ` 75/- or any amount is paid by the tenant as wages or salary to the alleged sub lessee, the same will be borne out by documents pertaining to the conduct of business of tea shop. The evidence adduced by the tenant to substantiate the contention regarding the jural relationship between the parties is purely oral. According to us, on an aspect which is capable of documentary evidence which should have been at the disposal of the tenant, adverse inference could have been drawn against the tenant. At this juncture, Sri.U.P.Balakrishnan, the learned counsel for the tenant R. C. R. No.450 of 2005 -7- submitted that if opportunity is given it may be possible to produce further documents for proving the defence that the status of Karunan, the 10th respondent in the RCP is that of an employee only. We are inclined to afford such opportunity, but only on conditions:- 6. We are surprised to learn that the monthly rent payable for this building situated within Thalassery municipal limits in which a tea shop business from which a daily turnover of ` 650/- is being derived is just at ` 9/- per mensem. It is clear to our mind that the above rate is ridiculously low. As a condition for the order of remand that is being passed, we are re-fixing the rent tentatively at ` 600/- per mensem. It is open to either party to move for regular fixation of fair rent invoking Section 15. Till fair rent is fixed, the tenant shall pay rent at the rate of ` 600/- per mensem with effect from 01/08/11. R. C. R. No.450 of 2005 -8- 7. The learned counsel for the landlord submitted that even the rent at the rate of ` 9/- per mensem is in arrears since 2005. It is open to the landlord to invoke the provisions of Section 12 and compel the payment of the above arrears. Result of the above discussion is therefore as follows:- The judgment of the Rent Control Appellate Authority declining eviction under Section 11(3) is confirmed. The order declining eviction on the ground of subletting is set aside. The RCP is remanded to the Rent Control Court for a fresh decision on the ground for eviction under Section 11(4) (i). Rent Control Court will permit the tenant to adduce documentary and other evidence to substantiate the contention that the jural relationship between the tenant and the alleged sub tenant is that of employer and employee. If further evidence is adduced by the tenant, landlord should be permitted to adduce counter evidence R. C. R. No.450 of 2005 -9- regarding the above point. The rent is re-fixed with effect from 01/08/11 at ` 6,00/- per mensem. The parties will enter appearance before the Rent Control Court on 18/08/11. The Rent Control Court is directed to expedite matters and pass revised order at the earliest and at any rate within four months thereafter. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-