Jayalekha Vasudevan v. Tharayil Prathapan

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932** **RCRev..No. 89 of 2008()** **------------------------------RCA.104/2006 of DISTRICT COURT/RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE. RCP.121/2005 of RENT CONTROLLER/ADDL. MUNSIFF-I, KOZHIKODE ....................** ## **REVISION PETITIONER/APPELLANT IN R.C.A/PETITIONER IN R.C.P :-** **---------------------------------------------------------------------------------------------------** **JAYALEKHA VASUDEVAN, AGED 67 YEARS, W/O LATE A.VASUDEVAN, SREEVIDYA, U.K.S.ROAD, KOZHIKODE.** **BY ADV. SRI.BOBBY MATHEW KOOTHATTUKULAM SRI. N. SUKUMARAN (SR)** ## **RESPONDENT(S)/RESPONDENT IN R.C.A/RESPONDENT IN R.C.P :-** **--------------------------------------------------------------------------------------------** **THARAYIL PRATHAPAN, DOOR NO.6/187, NEAR MALABAR CHRISTIAN, WYNADU ROAD, KOZHIKODE.** **ADV. SRI.MANJERI SUNDERRAJ FOR R1 SRI.B.PREMNATH (E) FOR R1** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **jvt** ## **PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------R.C.R. No.89 of 2008 -----------------------------Dated this the 5[th] day of January 2011** ## **O R D E R** ## Pius C. Kuriakose, J. Under challenge in this revision filed by the landlady under Section 20 of Act 2 of 1965 is the judgment of the Rent Control Appellate Authority, Kozhikode confirming the order passed by the Rent Control Court dismissing the petition for eviction on the ground of sub-letting. Significantly the alleged sub-lessee is not made a party to the RCP; not even the name is mentioned in the RCP. The allegation in the RCP was that, the tenant (respondent herein) has sub-let the building to an unnamed person after he had secured employment in Malayala Manorama. The tenant disputed the allegation and contended that though he has secured employment in Malayala Manorama, he R.C.R. No.89 of 2008 -: 2 :- himself is in possession of the building. But, he has engaged an employee to look after the business for him in his absence. Prior to instituting the RCP, the landlady had sent statutory notice under the proviso to Section 11(4)(i). Importantly this notice was addressed to the petition schedule building and the same was accepted by the tenant. In the rent control petition also the tenant is addressed to the petition schedule building and the notice sent by the Court was also received by the tenant in the petition schedule building itself. 2. The evidence before the Rent Control Court consisted of oral evidence of landlady’s son as PW1, Exts.A1 and A2, oral evidence of the tenant as RW1 and that of his employee as RW2. Documentary evidence on the side of the tenant consisted of Exts.B1 to B10 series. The report and plan submitted by the Commissioner on the basis of local inspection is Exts.C1 and C1(a). Ext.B1 is the receipt issued by the Calicut Corporation to the tenant’s mother, the R.C.R. No.89 of 2008 -: 3 :- original tenant against remittance of licence fee for conducting the business. Exts.B3 and B4 are receipts issued by the Corporation to the tenant’s mother against remittance of professional tax in respect of business conducted in the petition schedule building. Ext.B6 is the certified copy of the account maintained by the tenant with SBT in respect of the business conducted in the petition schedule building. The report, Ext.C1 submitted by the Commissioner was to the effect that at the time when he conducted the inspection, it was RW2, who was present in the building. The report further was to the effect that the neighboring shop keepers did not supply any information to him regarding the alleged sub-lease and that on making enquiries in other parts of the cities, it was revealed that the arrangement between RW1 and RW2 is that of a sublease. The learned Rent Control Court on evaluating the evidence came to the conclusion that landlady was unsuccessful in proving the existence on the ground of Sub ## R.C.R. No.89 of 2008 -: 4 :- section (3) of Section 11. The learned Appellate Authority would make a reappraisal of the evidence and concur with the conclusions of the Rent Control Court. Thus, eviction order was declined by the two authorities under the circumstances. 3. In this revision under Section 20 various grounds are raised assailing the judgment of the Appellate Authority. The learned counsel for the petitioner addressed very strenuous arguments before us on the basis of various grounds raised. Reliance was placed in the judgment of this Court in **Jacob** v. **Pradeep Naik** [2009(2) KLT 262] to argue that in the present case the burden was with the tenant to show as to what exactly is the relationship between him and the alleged sub-lessee. Mr.Bobby took us through the entire oral evidence adduced in the case and Ext.C1 Commissioner's Report. He argued that the finding concurrent though they may be, arrived at by the two statutory authorities, are illegal, irregular and improper R.C.R. No.89 of 2008 -: 5 :- warranting interference in the revisional jurisdiction of this Court under Section 20. 4. We have very anxiously considered the submissions of Mr.Bobby. We have gone through the judgment of the learned Appellate Authority as well as the order of the Rent Control Court. We have applied our mind to those items of evidence to which our attention was drawn by RW1. The question for consideration is as to whether the judgment of the Rent Control Appellate Authority which under the statutory scheme is the final court on facts, warrants interference under Section 20 of the Act. According to us, the above question can be answered only in the negatives ie; in favour of respondents. As already noticed, that RCP does not even contain the name of the alleged sub-lessee. Even in the statutory notice issued under the proviso to Section 11(4)(i), the name of the alleged sub-lessee is not mentioned. Ofcourse under Section 21 it may not be necessary to implead the alleged R.C.R. No.89 of 2008 -: 6 :- sub-lessee in a case under Section 11(4)(i). But the circumstance that the landlady did not even know the name of the alleged sub-lessee is of some moment according to us. Even though Mr.Bobby argued that fatal admissions were made by RW1 in his evidence, we are unable to agree with him. On the contrary what we find is that certain suggestive questions indicating that the business belongs to RW1 and is being conducted by RW2 are put to RW1. In order that an eviction ground under Section 11(4)(i) is established, it is necessary that the landlady establishes either sub-letting in which case it would necessary to show that there is landlord-tenant relationship between the tenant and the alleged sub tenant it is established if possession of the building (right under the lease) is unauthorisedly transferred. The allegations in the RCP are to the effect that the building is sub-let. Of course, there is also an allegation that a “third party” is in actual possession and is conducting business in the name and style R.C.R. No.89 of 2008 -: 7 :- “Asia Refrigeration and Electronics”. The only document placed on record in this case by either party relating to ownership of this business is Ext.B1. That document will show that the business continues to stand in the name of Smt.Janaki, none other than the mother of present tenant. True at the time of inspection of the Commissioner RW2 was found to be engaged in repairing refrigerators in the petition schedule building. Both RW1 and RW2 gave oral evidence before the Rent Control Court to the effect that RW2’s status is that of an employee. The above evidence inspired the Rent Control Court which had the advantage of recording the evidence and watching their demeanour in the witness box. On going through the impugned judgment we find that the findings entered therein are findings entered mainly on oral evidence which inspired not only the trial court but also the final fact finding court, the learned Appellate Authority. When reasonable findings are entered by the statutory authorities on the basis of evidence, in the R.C.R. No.89 of 2008 -: 8 :- present jurisdiction which is revisional in nature, we will not be justified in embarking upon a reappraisal of the evidence for the purpose of substituting findings of fact arrived at by the statutory authorities. We do not find way for interfering with the decisions concurrently taken by the authority and to dismiss the RCP. 5. At the same time we notice that the monthly rent of Rs.150/- which is being paid by the tenant is ridiculously low. The building is situated in a very prominent area of Kozhikode Corporation. The current rate was fixed long ago. We are of the view that if the building let out today the same will fetch much more than Rs.2,500/- per month. We refix the rent tentatively with effect from 1.2.2011 at Rs.2,500/- per mensem. The result of the above discussion is as follows:- The revision petition fails and stands dismissed. The rent payable by the respondent is refixed with effect from 1.2.2011 at Rs.2,500/- per month. This refixation is R.C.R. No.89 of 2008 -: 9 :- tentative and if either party is aggrieved, it is open to move the Rent Control Court for regular fixation of fair rent under Section 5 of the Act. Till fair rent is fixed, respondent shall pay Rs.2,500/- per month. We clarify that this judgment will not stand in the way of petitioner to move the Rent Control Court again seeking eviction of the respondent on all grounds which are available to her. **PIUS C. KURIAKOSE, JUDGE.** **N.K.BALAKRISHNAN, JUDGE.** Jvt