Jamalu P.V. v. Prameswaran @ Unni and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 3[RD] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943 R.C.REV.NO.103 OF 2021** **AGAINST THE JUDGMENT DATED 30.11.2020 IN R.C.A.NO.24 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), TIRUR AND THE ORDER DATED 01.07.2019 IN R.C.P.NO.54 OF 2017 OF THE RENT CONTROL COURT (MUNSIFF), PONNANI** ## **REVISION PETITIONER:** **JAMALU P.V.** **AGED 46 YEARS, S/O.ABDULLAKUTTY, KULANGARA VEETTIL (H), EDAKKAZHIYOOR AMSOM, CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN - 680 515.** **BY ADVS. K.G.BALASUBRAMANIAN AMBILY (PREMKUMAR)** ## **RESPONDENTS:** **1 PRAMESWARAN @ UNNI AGED 69 YEARS, S/O.SANKUNNI NAIR, ELAMANA THEKKETHIL (H), KALADI AMSOM, VERUR DESOM, ANNAKKAMPADI, KALADI P.O., PONNANI TALUK, MALAPPURAM DISTRICT - 679 582.** **2 JIBEESH AGED 35 YEARS, S/O.AHAMMED, VAKKATTAYIL(H), MARANCHERI AMSOM/DESOM/ P.O. 679 581, PONNANI TALUK, MALAPPURAM DISTRICT.** 2 ## R.C.Rev.No. 103 of 2021 ## **3 RINSHAD** **AGED 45 YEARS, S/O.ABDU, PALLIYIL(H), KANHIRAMUKKU AMSOM/DESOM, KANHIRAMUKKU P.O., PONNANI TALUK, MALAPPURAM DISTRICT - 679 584.** ## **4 SHUKKOOR** **AGED 42 YEARS, S/O.NALAKATH KALLINGAL HANEEFA, KAPPLIYANGATTEL(H), MARANCHERI AMSOM/DESOM/P.O.** - **679 581, PONNANI TALUK, MALAPPURAM DISTRICT.** **R1 BY ADVS. JAMSHEED HAFIZ K.K.NESNA** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 22.02.2022, THE COURT ON 03.03.2022 DELIVERED THE FOLLOWING:** 3 R.C.Rev.No. 103 of 2021 ## **O R D E R** ## Ajithkumar, J. This is a rent control revision under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965. The 3[rd] respondent in R.C.P.No.54 of 2017 before the Rent Control Court (Munsiff), Ponnani, is the revision petitioner. In the rent control petition filed by the 1[st] respondent, who is the landlord, sought for eviction under Sections 11(2)(b), 11(3), 11(4)(i), 11(4)(ii) and 11(4)(v) of the Act. Eviction was ordered under Sections 11(2), 11(3) and 11(4)(i) of the Act. The petitioner herein preferred an appeal as R.C.A.No.24 of 2019 before the Rent Control Appellate Authority (Additional District Judge), Tirur, under Section 18(1)(b) of the Act, but it failed. Hence, this revision petition. 2. The 1[st] respondent did not file an appeal, whereby dismissal of the eviction petition as regards claim under Section 11(4)(ii) and 11(4)(v) has become final. Therefore, the matters relevant for consideration are relating to the grounds for eviction under Section 11(2)(b), 11(3) and 11(4)(i) of the Act. 4 R.C.Rev.No. 103 of 2021 3. The 1[st] respondent let out the petition schedule building to respondent Nos.2 and 3. They, in the name of a partnership firm, were conducting a hotel in the petition schedule building. The 4[th] respondent was subsequently added as a partner. However, they later sub-let the building to the petitioner unauthorisedly. The building was let out for a daily rent of Rs.500/-. Rent since September, 2016 has been in arrears. The 1[st] respondent is a retired employee of ISRO, Thiruvananthapuram. He wants the petition schedule building to start a hotel of his own. 4. The aforesaid grounds on which eviction was sought by the 1[st] respondent were refuted by the petitioner by filing a counter statement. Respondent Nos.2 to 4 herein remained exparte in the rent control petition. The contentions raised by the petitioner are as follows: The building was availed on rent by the petitioner from the 1[st] respondent on 12.06.2015 on a daily rent of Rs.600/per day. No rent is in arrears. He has been conducting a hotel in the petition schedule building, after obtaining a licence from 5 R.C.Rev.No. 103 of 2021 Kalady Grama Panchayat. The 1[st] respondent demanded to surrender vacant possession of the building, which the petitioner refused. When the 1[st] respondent tried to forcibly evict him the petitioner had to file O.S.No.30 of 2017 and he obtained an order of temporary injunction. It is in the said circumstances the rent control petition was filed without any bonafides. The need urged is only a ruse for eviction. The petitioner is not a sub-tenant. Simultaneously, he contended that the 1[st] respondent is bound to prove the landlord-tenant relationship. 5. The Rent Control Court held trial on the said rival pleadings. Oral evidence of PW1 was recorded and Exts.A1 to A9 were received in evidence. On considering this evidence and hearing both sides, eviction was ordered by the Rent Control Court. Having failed in the appeal preferred under Section 18(1)(b) of the Act also, the petitioner has come up with this revision petition. 6. On 12.08.2021, when this matter came up for admission, notice was ordered to the respondents. Although 6 R.C.Rev.No. 103 of 2021 notice was given to all the respondents, 1[st] respondent alone entered appearance through his counsel. 7. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the 1[st] respondent. 8. The learned counsel appearing for the petitioner at the outset contended that the petitioner set forth valid contentions, which, if proved, would have resulted in dismissal of the rent control petition, but the petitioner failed to adduce any evidence. The learned counsel by contending that the said failure was on account of petitioner’s lack of information and also a wrong legal advice, and therefore, this case requires a remand. It is submitted that a fair trial did not take place in the matter, which resulted miscarriage of justice and total prejudice to the interest of the petitioner. In such circumstances, this Court in the interest of justice has to order to remand the matter to the Rent Control Court so as to afford an opportunity to the petitioner to substantiate his case. The said contention has to be considered in the light of 7 ## R.C.Rev.No. 103 of 2021 the other relevant aspects, which were weighed by the courts below for ordering eviction. 9. The 1[st] respondent is admittedly the landlord. Only person who contested the matter is the petitioner, the alleged sub-tenant. The definite case of the 1[st] respondent-landlord is that the tenants in possession of the petition scheduled building sublet the same to the petitioner. It was contended, originally respondent No.2 and 3, as a partnership firm, had availed the building on rent, and later, the 4[th] respondent also joined the partnership firm. Respondent Nos.2 to 4, however, did not contest the rent control petition. The petitioner filed a counter statement and stoutly contested the matter. 10. The petitioner categorically contended that he availed the petition schedule building on 12.06.2015 directly from the 1[st] respondent on a daily rent of Rs.600/-. It was in that capacity, he has been in possession of the petition schedule building and conducting a hotel after obtaining a licence from the authorities concerned. Adding to that, he has filed O.S.No.30 of 2017 before the Munsiff's Court claiming 8 R.C.Rev.No. 103 of 2021 that he has been in possession and enjoyment of the petition schedule building. When he contends so, it is a candid admission and it has the implication that he is in absolute possession and enjoyment of the petition schedule building. He thereby is estopped from denying the identity of the petition schedule building. Also, he is disentitled to deny the title of the 1[st] respondent as the landlord and his right to sue for eviction. In the light of the said background only the other contentions of the petitioner can be appreciated. 11. The 1[st] respondent claimed that he let out the building to respondent Nos.2 and 3 on the basis of a rent agreement. That agreement has not been produced. The learned counsel for the 1st respondent would submit that the oral testimony of PW1 along with Exts.A2 to A4 sufficiently proved that partnership firm formed by respondent Nos.2 to 4 was the tenant in the petition schedule building. Ext.A2 is a copy of the partnership deed of the firm, which conducted the hotel in the petition schedule building. The recitals would show that the hotel was a firm business and it has been 9 R.C.Rev.No. 103 of 2021 conducted by the firm as a tenant. The licence as evidenced by Exts.A3 and A4 stood in the name of either the firm or respondent Nos.2 and 3. The oral testimony of PW1 that he let out the building to respondent Nos.2 and 3 was not successfully challenged. In the said circumstances, probable conclusion is that the partnership firm of respondent Nos.2 to 4 was the tenant. 12. Section 11 of the Act deals with eviction of tenants. As per Section 11(4)(i) of the Act, a landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building, if the tenant after the commencement of this Act, without the consent of the - landlord, transfers his right under the lease or sub lets the entire building or any portion thereof if the lease does not confer on him any right to do so. As per the proviso to Section 11(4)(i), an application under this clause shall not be made for the first time in respect of one and the same tenancy unless the landlord has sent a registered notice to the tenant intimating the contravention of the said condition of 10 R.C.Rev.No. 103 of 2021 the lease and the tenant has failed to terminate the transfer - or the sub lease, as the case may be, within thirty days of the receipt of the notice or the refusal thereof. As per Explanation to Section 11(4)(i), where on the partition of a joint family or of the rights of co-tenants, or on the dissolution of a firm, the right of the joint family or the co-tenants or the firm under a lease is vested in a member of the joint family, or a co-tenant or a partner, as the case may be, whether by act of parties or otherwise, no transfer by the tenant of his right under the lease shall be deemed to have taken place within the meaning of this clause. 13. In **Bharath Sales Ltd. v. Life Insurance Corporation of India [(1998) 3 SCC 1]** the Apex Court held that sub tenancy or subletting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is 11 R.C.Rev.No. 103 of 2021 so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sublet had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub lease. It may be paid in cash or in kind or may have been paid or 12 R.C.Rev.No. 103 of 2021 promised to be paid. It may have been paid in lump-sum in advance covering the period for which the premises is let out or sublet or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sublet. 14. In **Unni Vacco v. Thankamma Gregory [2003 (2) KLT 459]** a Division Bench of this Court held that, it is true that with regard to the question of sub-lease, there should be an exclusive possession by the alleged sub-lessee. But as stated in many cases, the transaction is between the lessee and sub-lessee. When a person other than the tenant is found to be in the building, the burden is on the tenant to show that there is no sub-lease or transfer of possession. 15. In **Jacob v. Pradeep Naik [2009 (2) KHC 53]** a Division Bench of this Court held that in order to establish a 13 R.C.Rev.No. 103 of 2021 ground for eviction under Section 11(4)(i) of the Act it is not necessary to show that exclusive possession of the tenanted building has been unauthorisedly transferred to the alleged sub-lessee and also to establish that there is landlord tenant relationship between the tenant and the alleged sub-lessee. A careful reading of Section 11(4)(i) will show that what is made objectionable and a ground for eviction under that subsection is transfer of the tenant's rights under the lease without the consent of the landlord or subletting of the entire building or any portion thereof unless authorised in that regard by the terms of the lease. The ingredients of unauthorised subletting and transfer of tenant's rights under the lease necessary under Section 11(4)(i) are in the alternative and are not cumulative. Subletting being a clandestine arrangement between the tenant and the sub tenant the terms which will be known of them only, if it were to be insisted that the landlord will have to establish a landlord-tenant relationship between the tenant and the subtenant, for succeeding in a petition wherein the ground under 14 R.C.Rev.No. 103 of 2021 Section 11(4)(i) is invoked, the task of the landlord will be extremely difficult. This is why the Legislature has provided the ingredients of the sub-section in the alternative. Here again, it is not necessary that the transfer of the tenant's rights under the lease should be in respect of the entire building. It is sufficient that the tenant transfers his rights under the lease in respect of a portion of the building. The most important right under the lease from the tenant's point of view is the right to possess and enjoy the building. This is why transfer of possession of the building is always understood in the context of the ground under Section 11(4) (i) as transfer of right under the lease entailing liability for eviction of the tenant if such transfer is unauthorised. 16. In **Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar [(2010) 1 SCC 217]** the Apex Court summarised the legal position regarding the essence of sub-letting, mode of its proof and onus of proof, as follows; '(i) In order to prove mischief of sub-letting as a ground for eviction under rent control laws, two ingredients have to be established (one) parting with possession of 15 R.C.Rev.No. 103 of 2021 tenancy or part of it by the tenant in favour of a third party with exclusive right of possession, and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent. (ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant. (iii) The existence of deed of partnership between the tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person. (iv) If the tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession. (v) Initial burden of proving sub-letting is on the landlord but once he is able to establish that a third 16 R.C.Rev.No. 103 of 2021 party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to the tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises. (vi) In other words, initial burden lying on the landlord would stand discharged by adducing prima facie proof of the fact that a party other than the tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.' ## 17. In **Usman K.S. v. Vidyavathi @ Vidya Kalesan [2014** **(1) KHC 830]** a Division Bench of this Court held that, as held by the Apex Court in **Celina Coelho Pereira** , the initial burden of proving sub-lease is on the landlord, and once it is discharged by him, the tenant will have to explain the presence of the alleged tenant in the premises, and he will have to prove that it is not a case of sub-lease. 18. Here, no evidence whatsoever has come on record to show that the tenancy arrangement between the 1[st] respondent and the other respondents has come to an end. In that context, the claim of the petitioner that he obtained the 17 R.C.Rev.No. 103 of 2021 building on rent from the 1[st] petitioner on 12.06.2015 assumes importance. In the nature of the said pleading, it is the absolute burden of the petitioner to prove that he is a tenant under the 1[st] respondent. The petitioner even claimed that there was a written rent agreement. No evidence has been let in by him to prove that fact. Not only that the rental agreement was not produced, but he did not even come forward to depose before court. The petitioner has a case that he was denied opportunity to adduce evidence. His grievance is that due to his ignorance and wrong legal advice, he could not adduce evidence. Such a contention cannot be countenanced at this revisional stage. 19. In the absence of any evidence to show that such a tenancy arrangement was created, the only possible conclusion is that he came to occupy the building not under any lawful arrangement. He thereby becomes an objectionable tenant having the status only of a sub-tenant. The result is that the petitioner as well as respondent Nos.2 to 4 are liable to be evicted from the petition schedule 18 R.C.Rev.No. 103 of 2021 building. The findings of the courts below in this regard are in terms of the principle of law laid down in the above mentioned decisions. The courts below before rendering those findings have considered the evidence in great detail. We find no reason to interfere with the said findings. Viewed so, we are unable to accept the submission of the learned counsel for the petitioner that the case should be remanded to the Rent Control Court for a fresh trial. 20. As regards the order of eviction on the ground of arrears of rent and bonafide need, no serious contentions were raised by the learned counsel for the petitioner. The 1[st] respondent was an employee in the ISRO, Thiruvananthapuram. He retired from service. He now wants to start a hotel in the petition schedule building of his own. He has deposed in detail regarding his proposal to start such a venture. There is nothing on record to doubt his bonafides. Therefore, we hold that the courts below after proper appreciation of the evidence correctly had concluded that the need urged by the 1[st] respondent is bonafide. 19 R.C.Rev.No. 103 of 2021 21. The 1[st] respondent pleaded that rent since September, 2016 has been in arrears. He deposed in court also of that fact. No evidence showing payment of rent during the said period has come in from the side of the tenants. Regarding the rate of rent, there is no dispute. In the said circumstances, order of eviction on the ground of arrears of rent is also based on sound findings. 22. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of Section 20, in cases, where the appellate authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per sub-section (2) of Section 20 of the Act, the costs of and incident to all 20 R.C.Rev.No. 103 of 2021 proceedings before the High Court or District Court under subsection (1) shall be at its discretion. 23. In **Rukmini Amma Saradamma v. Kallyani Sulochana [(1993) 1 SCC 499]** , the scope of revisional powers of the High Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise, the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ‘propriety’ it - cannot mean that there could be a re appreciation of evidence. Of course, the revisional court can come to a 21 R.C.Rev.No. 103 of 2021 different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 24. In **Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78]** a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in **Rukmini Amma Saradamma** the Apex Court reiterated that even the wider language of Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 does not enable the High Court to act as a first or a second court of appeal. The Constitution Bench agreed with the view of the Three-Judge Bench in **Rukmini Amma Saradamma** that the word ‘propriety’ does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it. 22 R.C.Rev.No. 103 of 2021 25. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** after considering the matter in the backdrop of law laid down in **Rukmini Amma Saradamma** , **Ubaiba** and **Dilbahar Singh** the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said to be - perverse in any way. The High Court could not have re appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 26. Viewed in the light of the above principle of law, we are of the definite view that there is no reason to interfere with the judgment of the Appellate Authority which confirmed the order of eviction by the Rent Control Court. It is not suffering from any illegality, irregularity or impropriety. 23 R.C.Rev.No. 103 of 2021 27. Hence this Revision Petition fails. We, accordingly, dismiss the Revision Petition. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr