C.K. Chamunni v. Haji alias Abubacker and P.V. Antony

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR.JUSTICE K.BALAKRISHNAN NAIR** **& THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929** **RCRev..No. 20 of 2008()** **---------------------------------RCA.9/2006 of I ADDL. DISTRICT COURT, PALAKKAD RCP.9/2004 of RENT CONTROL COURT, ALATHUR** **....................** ## **REVISION PETITIONER/APPELLANT/1ST RESPONDENT:** **-----------------------------------** **C.K. CHAMUNNI, SON OF KANDAN, MELECHOORKUNNU, KANNAMBRA AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.P.R.VENKETESH** ## **RESPONDENTS: RESPONDENTS/PETITIONER AND SECOND RESPONDENT:** **------------------------** **1. HAJI ALIAS ABUBACKER, SON OF AHAMMED RAWTHER,CHITHALI,KUZHALMANNAM AMSOM AND DESOM, ALATHUR TALUK.** **2. P.V. ANTONY, SON OF YOHANNAN, PETHI PARAMBIL VEEDU, NADATHARA, THRISSUR DISTRICT** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 29/01/2008, THE COURT ON 20/02/2008 PASSED THE FOLLOWING:** ## **R.C.R. NO.20/2008** **ORDER ON I.A. NO.150/2008 IN RCR. NO.20/2008** ## **DISMISSED** ## **20.02.2008** **SD/- K.BALAKRISHNAN NAIR, JUDGE SD/- P.N.RAVINDRAN, JUDGE** _**/**_ **TRUE COPY/** **P.S. TO JUDGE** **tss** ## **K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== R.C.R.No.20 of 2008** ## **========================** ## **Dated this the 20th day of February, 2008.** ## **ORDER** ## **Ravindran,J.** The first respondent in R.C.P.No.9 of 2004 on the file of the Rent Control Court, Alathur is the petitioner in this revision petition filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the "Act" for short. The first respondent is the land lord of the petition schedule premises and the second respondent is the supplemental second respondent therein. 2. The land lord instituted the Rent Control Petition on the allegation that the petitioner herein to whom the petition schedule shop room was let out on 21.9.1984 has failed to pay RCR 20/08 -: 2 :- rent after March, 2002, that on 30.12.2003 the petitioner had issued a cheque for Rs.9,600/- towards the rent for 20 months from April, 2002 to December, 2003, that the said cheque was dishonoured when presented for payment, that he had thereupon issued notice dated 14.6.2002 demanding payment of arrears of rent, that the petitioner did not discharge the arrears of rent notwithstanding the receipt of the said notice and that he has thereby kept the rent in arrears. The first respondent further contended that his son Mohammed Rafi needs the petition schedule shop room for starting a business in betel leaves and that the tenant (the petitioner herein) has sub let the petition schedule shop room to a third party. The land lord had also averred that he is not aware of the details regarding the sub lease and that as and when the details are available, steps will be taken to implead the sub tenant and to amend the petition, seeking appropriate reliefs. Subsequently, the land lord impleaded the second respondent herein, the alleged sub tenant and also amended the Rent Control Petition, alleging that the tenant (the petitioner herein) has, contrary to the terms of the entrustment, sub let the petition schedule shop room to the RCR 20/08 -: 3 :- second respondent, without the consent of the land lord and that he is entitled to get an order of eviction on that ground as well. The land lord had thus sought eviction under Sections 11(2)(b), 11(3) and 11(4)(i) of the Act. 3. The petitioner and the second respondent herein resisted the Rent Control Petition by filing separate counter statements. The petitioner contended that he continues to be the tenant and has not parted with the possession of the petition schedule shop room wherein he is conducting a jewellery. The petitioner disputed the bonafide need put forward by the land lord and further contended that two rooms in the up stair portion of the building of which the petition schedule shop room is a part are lying vacant and are in the possession of the land lord and that if at all the land lord's son desires to start a business, it can be done in the said rooms on the up stair portion of the building. As regards the claim for arrears of rent, the petitioner herein contended that the monthly rent is only Rs.300/- and that after the cheque issued by him was dishonoured, he had sent a demand draft for Rs.10,500/- covering the rent up to November, 2004 and that he was ready to pay the rent for the period RCR 20/08 -: 4 :- thereafter. He also contended that at the time of entrustment of the petition schedule shop room he had paid Rs.75,000/- to the former tenant who was occupying the premises and a sum of Rs.15,000/- as advance to the land lord. After the Rent Control Petition was amended, the petitioner filed an additional counter statement contending that from 22.9.2003 onwards, the jewellery business in the petition schedule shop room is being conducted on partnership basis and that he, his wife, daughter and the second respondent herein are the partners of the said firm. The petitioner also contended that he has not parted with possession of the petition schedule shop room and hence, there is no sub letting of the premises. 4. The second respondent, impleaded as the sub tenant, contended that he was inducted as a partner of the jewellery business as per partnership deed executed on 22.9.2003, that thereafter, he is conducting the jewellery business along with the other partners and that in order to improve the business, the name of the jewellery was changed to "Antos Irin Jewellery". The second respondent also denied the allegation that he is a sub tenant of the building. RCR 20/08 -: 5 :- 5. In the Rent Control Court, the land lord was examined as PW1, his son was examined as PW2 and Exts.A1 to A5 series were marked on his side. On the side of the respondent, the petitioner herein was examined as RW1 and Exts.B1 to B4 were marked. At the instance of the land lord, a Commission was taken out to inspect the petition schedule shop room and the report submitted by the Commissioner was marked as Ext.C1. 6. The Rent Control Court on an analysis of the pleadings and the evidence in the case and the conduct of the petitioner herein, held that the rent payable for the petition schedule shop room is Rs.480/- per month. Reliance was placed on the fact that the petitioner had admittedly issued a cheque for Rs.9,600/- towards the rent for 20 months, to hold that the rate of rent is Rs.480/- per month. Though the petitioner had paid a sum of Rs.15,300/- towards arrears of rent after Ext.A3 notice was issued, the Rent Control Court held that the said payment was made on the basis that the rent is Rs.300/- per month and in view of the finding that the prevailing rate of rent is Rs.480/- per month, the tenant is in arrears at the rate of Rs.180/- per month from April 2002 till the date of Ext.A3 notice. In that view of the RCR 20/08 -: 6 :- matter, the Rent Control Court held that the land lord is entitled to an order of eviction under Section 11(2)(b) of the Act. As regards the claim for eviction under Section 11(3) of the Act, the Rent Control Court held that the land lord has not succeeded in proving that he bonafide needs the petition schedule shop room for his son. The claim for eviction under Section 11(3) of the Act was thus negatived. Though the Rent Control Court had repelled the claim for eviction under Section 11(3) of the Act, it proceeded to consider the merits of the claim put forward by the tenant under the second proviso to Section 11(3) of the Act. The Rent Control Court noticed that the petitioner herein, the tenant of the premises, who claims to be running a partnership business in jewellery, did not produce the balance sheet of the firm or the profit and loss account or any other material to prove the details regarding the income of the firm and its partners. The Rent Control Court accordingly held that the tenant, the petitioner herein, has failed to establish the ingredients of the first limb of the second proviso to Section 11(3) of the Act. As regards the protection of the second limb of the second proviso to Section 11 (3) of the Act, the Rent Control Court held that the tenant has RCR 20/08 -: 7 :- not made any serious enquiry as regards the availability of other suitable buildings in the locality, and that a shopping complex has come up in the locality in which the building is situated. The Rent Control Court accordingly held that the petitioner herein is not entitled to protection of the second proviso to Section 11(3) of the Act. As regards the claim for eviction under Section 11(4)(i) of the Act, the Rent Control Court considered Ext.A4, the reply sent by the petitioner herein to Ext.A3, the case set out by him in the counter statement initially filed on 14.3.2005 and the case set out in the counter statement filed on 25.6.2005 after the Rent Control Petition was amended. The Rent Control Court noticed that in Ext.A4 reply notice dated 17.7.2004, the petitioner tenant had stated that he has not sub let the room to anyone and that he is conducting the business therein under the name and style "Charutha Jewellery". The Rent Control Court also noticed that in the counter statement filed on 14.3.2005, the petitioner had reiterated the said contention. The Advocate Commissioner inspected the petition schedule shop room on 18.6.2005 and filed a report on 25.6.2005. Thereafter, on 18.12.2005 the petitioner filed an additional counter statement contending that with effect RCR 20/08 -: 8 :- from 22.9.2003, the business is being run by a partnership firm in which his wife, daughter and the second respondent herein are partners. It was noticed that the second respondent had in his counter statement, taken the stand that he is doing the business as per Ext.B1 partnership deed executed on 22.9.2003. The pleadings and the evidence in the case disclosed the presence of the second respondent in the petition schedule shop room and the active role played by him in the business. When the Advocate Commissioner inspected the petition schedule shop room on 18.6.2005 the petitioner not present, but the second respondent was found there. The Rent Control Court, after noticing these facts, proceeded to consider the oral and documentary evidence on the side of the tenants. The Rent Control Court, on an analysis of the pleadings and the evidence in the case, held following the decision of this Court in **Nasarudeen** v. **Padmakumar** - 2004(1) K.L.T. S.N.77, that as Ext.B1 is not a registered partnership deed, reliance cannot be placed on it. The Rent Control Court also noticed that Exts.B2 and B3 relating to the assessment year 2002-2003 were submitted before the Sales Tax Officer only on 27.4.2004, long RCR 20/08 -: 9 :- after the execution of Ext.B1 partnership deed. The Rent Control Court also noticed that the respondents in the Rent Control Petition had no case that prior to the execution of Ext.B1, a partnership firm was in existence and also the fact that the balance sheet, the profit and loss account, the income drawn by its partners etc., had not been brought out in evidence. The Rent Control Court accordingly came to the conclusion that the partnership firm is only a camouflage to cover up the real arrangement between the petitioner and the second respondent. The Rent Control Court also noticed that the name of the firm was changed from "Charutha Jewellery" to "Antos Irin Jewellery". Accordingly, the Rent Control Court held that the petitioner herein has sub let the petition schedule shop room to the second respondent herein, thereby entitling the land lord land to an order of eviction under Section 11(4)(i) of the Act as well. 7. The Appellate Authority, after an elaborate analysis of the pleadings and evidence in the case, affirmed the findings of the Rent Control Court and accordingly dismissed the appeal filed by the petitioner and the memorandum of cross objection filed by the first respondent. Though before the Appellate Authority, the RCR 20/08 -: 10 :- petitioner had filed I.A.No.1346 of 2006 to call for the sales tax return submitted by the firm "Charutha Jewellery" for the period from 8/2004 to 12/2005, the said application was rejected in the light of the stand taken by the second respondent that since 22.9.2003 the business is being run under the name and style "Antos Irin Jewellery". 8. We heard Sri. P.R.Venkatesh, the learned counsel appearing for the petitioner. The learned counsel assailed the conclusions and findings of the Rent Control Court and the Appellate Authority as regards the arrears of rent and the sub lease. The learned counsel appearing for the petitioner submitted that the Appellate Authority ought to have allowed the prayer in I.A.No.1346 of 2006 to call for the sales tax return submitted by the firm Charutha Jewellery for the period from 8/2004 to 12/2005. We have considered the submission made by the counsel for the petitioner. We have gone through the orders passed by the Rent Control Court and the Appellate Authority. The Rent Control Court and the Appellate Authority have taken note of the contentions in Ext.A4 reply sent by the petitioner to the notice issued by the land lord, the case set out by the RCR 20/08 -: 11 :- petitioner in the first counter statement filed by him on 14.3.2005, the case set out by him in the additional counter statement filed on 18.12.2005 and the case set out by the second respondent, the sub tenant in the counter statement filed by him, to come to the conclusion that the partnership evidenced by Ext.B1 has not come into effect and that it is only a camouflage to cover up the real arrangement between the petitioner and the second respondent. The Rent Control Court and the Appellate Authority also repelled the plea of the petitioner that the rent payable is only Rs.300/- per month. 9. From the case set out by the petitioner and the second respondent herein in the objections filed by them to the petition for eviction as regards the nature of the business being carried on in the petition schedule shop room, it is evident that they had no consistent case as regards running of the business. The petitioner, in the reply notice evidenced by Ext.A4 and in the first counter statement filed by him contended that he was running the business on his own. The land lord had even in the petition for eviction originally filed, contended that the petitioner herein had sub let the premises and that as and when the details are RCR 20/08 -: 12 :- available, steps will be taken to implead the sub tenant and to amend the petition, seeking appropriate reliefs. The petition was later amended and second respondent was joined as a party on the allegation that he is the sub lessee. It was with reference to the averments in the petition for eviction as amended that the petitioner herein filed the additional counter statement on 18.12.2005. After the petition was amended, for the first time he set out a case that the business was being run on a partnership basis with the second respondent also as one among the partners. The case of the first petitioner was that the business was being run under the name and style "Charutha Jewellery". On the other hand, the second respondent had in the counter statement filed by him contended that he was inducted in as a partner of the firm as per Ext.B1 partnership deed dated 22.9.2003 and that thereafter he is conducting the business along with the other partners under the name and style "Antos Irin Jewellery". From the pleadings in the case on hand, the conduct of the parties, the failure of the petitioner to prove that prior to the execution of Ext.B1 partnership deed, a firm was in existence, that it was the said firm that was running the business RCR 20/08 -: 13 :- in the petition schedule shop room and that the said firm was later reconstituted with the induction of the second respondent as a partner, we are persuaded to agree with the findings of the Rent Control Court and the Appellate Authority that Ext.B1 partnership deed was executed only to cover up the real arrangement between the petitioner and the second respondent and that the petitioner has in fact sub let the premises to the second respondent. In our considered opinion, the attempt made by the petitioner herein to whom the shop room was let out, to explain away the presence of the second respondent in the petition schedule shop room and the predominant role played by him in the conduct of the business as is discernible from the pleadings of the second respondent, cannot be countenanced. We therefore hold that there is no merit in the challenge to the orders passed by the Rent Control Court and the Appellate Authority and that no grounds have been made out warranting interference with the orders passed by the courts below. The findings of the courts below cannot in any way be said to be perverse or not supported by the evidence on record. For the reasons stated above, we hold that there is no merit RCR 20/08 -: 14 :- in this revision petition. The revision petition fails and it is accordingly dismissed. No costs. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 5/2