Jessy v. Alex Eapen and Lijoy Louis

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 13TH DAY OF DECEMBER 2012/22ND AGRAHAYANA 1934 OP (RC).No. 3659 of 2012 (O) ---------------------------EA.169/12 IN E.P.92/2012 PRL.M.C.,ERNAKULKAM IN RCP.13/2010 of PRL.M.C.,ERNAKULAM RP.1/2012 of D.C. & SESSIONS COURT, ERNAKULAM PETITIONER: ------------- JESSY, AGED 43 YEARS W/O. BABU, NIKARTHIL HOUSE, C.K.SREEDHARAN ROAD PALLURUTHY. BY ADVS.SRI.T.KRISHNAN UNNI (SR.) SRI.SAJU.S.A SRI.T.SIVADASAN SRI.K.C.KIRAN SMT.P.A.SHEEJA RESPONDENTS: -------------- ## 1. ALEX EAPEN S/O. EAPEN K. VARGHESE, PARAKKAL HOUSE, 44 AMBADY PANTHIYIL, PALLIMUKKU, WARRIAM ROAD ERNAKULAM SOUTH-682016. ## 2. LIJOY LOUIS AMBADY PANTHIYIL, PALLIMUKKU, WARRIAM ROAD ERNAKULAM SOUTH-682016. R1 BY ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL) R1 BY ADV. SRI.P.R.MILTON THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 13-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(R.C.) 3659/12 ## APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1- TRUE COPY OF THE ORDER DATD 03-11-2011 IN R.C.P.NO. 13 OF 2010 OF THE 3RD ADDITIONAL MUNSIFF AND RENT CONTROL COURT, ERNKULAM. EXHIBIT P2- TRUE COPY OF THE AFFIDAVIT AND ITS ACCOMPANYING E.A.NO. 169 OF 2012 IN E.P.NO. 92 OF 2012 IN R.C.P.NO. 13 OF 2010. EXHIBIT P3- TRUE COPY OF THE OBJECTION FILED BY THE COUNSEL FOR THE DECREE HOLDER IN E.P.NO. 92 OF 2012 OF THE PRINCIPAL MUNSIFF'S COURT, ERNKULAM. EXHIBIT P4- TRUE COPY OF THE OBJECTIONS FILED BY THE TENANT TO EXHIBIT P2 E.A. DATED 08-06-2012 BEFORE THE EXECUTING COURT. EXHIBIT P5- TRUE COPY OF THE ORDERS IN E.A.NO. 169 OF 2012 IN E.P.NO. 92 OF 2012 IN R.C.P. NO. 13 2010 OF THE PRINCIPAL MUNSIFF COURT, ERNAKULAM DATED 21-06-2012. EXHIBIT P6- TRUE COPY OF THE REVISION PETITION NO. 1 OF 2012 ON THE FILES OF THE DISTRICT COURT, ERNAKULAM. EXHIBIT P7- TRUE COPY OF THE OBJECTION SUBMITTED ON BEHLAF OF THE LANDLORD BEFORE THE DISTRICT COURT, ERNAKULAM IN R.C.R.P.NO. 1 OF 2012. EXHIBIT P8- TRUE COPY OF THE OBJECTIONS FILED BY THE TENANT BEFORE THE DISTRICT COURT, ERNAKULAM IN R.C.R.P.NO. 1 OF 2012. EXHIBIT P9- TRUE COPY OF THE ORDER IN R.C.R.P.NO. 1 OF 2012 OF THE DISTRICT COURT AND RENT CONTROL APPELLATE AUTHORITY. RESPONDENTS' EXHIBITS: EXT.R1(a): TRUE COPY OF THE COMMISSION REPORT IN RCP13/10 OF RENT CONTROL COURT, ERNAKULAM. EXT.R2(b) : TRUE COPY OF THE COMMISSION REPORT IN RCP,14/10 OF RENT CONTROLCOURT, ERNAKULAM. // TRUE COPY // _**C.R.**_ ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** O.P.(R.C.) No.3659 of 2012 O **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 13[th] day of December, 2012 ## **JUDGMENT** ## K.T. Sankaran J., The first respondent filed R.C.P. No.13 of 2010 before the Rent Control Court, Ernakulam against the second respondent under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act. The R.C.P. was filed on 20.1.2010. On 3.11.2011 the Rent Control Court passed an order under Section 12 (3) of the Act stopping all further proceedings in the R.C.P. and directing the tenant to put the landlord in possession of the building. That order was passed on the ground that the tenant failed to pay the admitted arrears of rent within the time stipulated therein. 2. The first respondent/landlord filed E.P. No.92 of 2012 to _O.P.(R.C.) No.3659 of 2012_ **==> picture [14 x 9] intentionally omitted <==** get delivery of the building. The Executing Court ordered delivery. At that juncture, on 23.5.2012, the petitioner, who is not a party to the proceedings, filed E.A. No.169 of 2012 contending that she is an independent occupant of the petition schedule building and that she is not liable to be evicted. In the said application, the petitioner contended that she was put in possession of the building as a sublessee by the original tenant with the knowledge of the landlord on 19.4.2010. The petitioner also raised a contention that the landlord and the tenant colluded together and the order dated 3.11.2011 was passed as a result of such collusion. The landlord as well as the tenant filed objections to E.A. No.169 of 2012. 3. No evidence was adduced by the petitioner in E.A. No.169 of 2012 either to show that she was put in possession by the tenant as alleged or the landlord gave permission for creating such sublease. It was also not proved that the landlord ever knew of creation of any such sub-lease. The Executing Court held that the petitioner failed to prove the case put forward by her. It was noticed by the Executing Court that the case before the Rent _O.P.(R.C.) No.3659 of 2012_ **==> picture [14 x 9] intentionally omitted <==** Control Court was hotly contested by the tenant. It was held that the circumstances are strong enough to suspect that the petitioner only wanted to delay the execution proceedings. 4. Challenging the order dated 21.6.2012 passed by the Executing Court, the petitioner filed R.C.R.P. No.1 of 2012 before the District Court. The Revisional Court dismissed the revision as per the order dated 28.9.2012, which is under challenge in this O.P. (R.C.). 5. Adv. Sri.T.Krishnanunni, learned senior counsel appearing for the petitioner submitted that the collusion between the landlord and the tenant is clearly established if we look at the counter filed by the tenant in E.A. No.169 of 2012 and also in the stay petition in the revision before the District Court. It is submitted that in those objections, the tenant supported the landlord and he contended that the petitioner is not a sub-lessee. The learned senior counsel also pointed out that the Executing Court as well as the Revisional Court did not adjudicate the question whether the petitioner has any independent rights. _O.P.(R.C.) No.3659 of 2012_ **==> picture [14 x 9] intentionally omitted <==** 6. Adv.Sri. George Varghese, learned counsel appearing for the first respondent/landlord contended that the collusion is between the tenant and the petitioner and it is clear from the objections filed by the tenant before the Executing Court and Revisional Court. It is submitted that if there was a real collusion between the landlord and tenant, the tenant would have kept quiet. The very fact that the tenant filed counter statement supporting the landlord would establish that it was a collusive act done by the tenant and the petitioner. Learned counsel for the first respondent supported the orders passed by the Court below. He relied on the decisions of this Court reported in **Mohammed Sageer v. Prakash Thomas** [2005(2) KLT 400] and **Abdul Hai, N and others v. Nandakumar K. and others [** ILR 2012 (2) Kerala 715]. 7. We are not inclined to accept the contention raised by the learned senior counsel appearing for the petitioner that the Courts below did not consider the contention put forward by the petitioner on the merits. The Courts below held that the petitioner did not produce any evidence to show that she is a sub-lessee and that the _O.P.(R.C.) No.3659 of 2012_ **==> picture [14 x 9] intentionally omitted <==** landlord knew about the sub-lease or he consented to the same. The alleged sub-lease came into existence after the filing of the R.C.P. The R.C.P. was not filed on the ground of sub-lease. Therefore, it cannot be said that the landlord should have sent a notice to the petitioner before filing the R.C.P. Admittedly, the alleged sub-lease came into existence after filing of the R.C.P. A Commissioner was appointed in the R.C.P. to inspect the petition schedule building. The Commissioner inspected the petition schedule building on 18.3.2011. The petitioner filed the application before the Executing Court only on 23.5.2012. If the case of the petitioner is true, she would have known about the proceedings. The Commissioner inspected the petition schedule building and noted all the material facts with respect to the business conducted in the building. However, the petitioner did not file any application to get herself impleaded in the R.C.P. She pretended ignorance about the proceedings and approached the Executing Court only after delivery was ordered. 8. Section 21 of the Kerala Buildings (Lease and Rent _O.P.(R.C.) No.3659 of 2012_ **==> picture [14 x 9] intentionally omitted <==** Control) Act makes it mandatory to implead the sub-tenant only in case where the sub-letting is allowed under the original agreement of tenancy and the sub-lessee had given notice of the sub-tenancy to the landlord. There is no case for the petitioner that the subletting was permissible under the original agreement of tenancy. The petitioner has also no case that she had given notice of the subtenancy to the landlord. Section 21 of the Act provides that any order for the eviction of a tenant passed under the Act shall be binding on all sub-tenants under the tenant, whether they were parties to the proceedings or not. The only exception to the same is that the orders of eviction were obtained by fraud or collusion. Though the petitioner raised fraud and collusion, the ingredients of fraud or collusion are not set out in the affidavit filed by her. It is well settled that fraud like any other charge in a criminal offence, whether made in civil or criminal proceedings should be proved beyond reasonable doubt. However strange the coincidences and however grave the doubts, suspicion alone can never take the place of proof. (See **Union of India v. M/s.Chaturbhai M. Patel & Co** .: _O.P.(R.C.) No.3659 of 2012_ **==> picture [14 x 9] intentionally omitted <==** A.I.R. 1976 S.C. 712). As regards collusion, there is no evidence at all to indicate that the landlord and tenant colluded to defeat the rights of the petitioner. 9. Section 21 of the Act reads as follows: “ _**21. Order under the Act to be binding on subtenants:-** Any order for the eviction of a tenant passed under this Act shall be binding on all sub-tenants under such tenant, whether they were parties to the proceedings or not, provided that such order was not obtained by fraud or collusion. In cases where sub-letting is allowed under the original agreement of tenancy the sub-tenant shall be made a party to the proceedings if he had given notice of the sub-_ ” _tenancy to the landlord._ 10. To entitle the sub-tenant to claim any independent right and to claim the protection of Section 21 of the Act, mere knowledge of the sub-lease by the landlord is not enough. Knowledge of the landlord is distinct and different from the subletting which is recognised under Section 21 of the Act. Even in case where sub-letting is allowed under the original agreement of tenancy, the sub-tenant cannot claim that she should be made a ## _O.P.(R.C.) No.3659 of 2012_ **==> picture [14 x 9] intentionally omitted <==** party to the proceedings, if she had not given notice of the subtenancy to the landlord. The ingredients to be satisfied under the second limb of Section 21 of the Act are cumulative. That subletting is allowed under the original agreement of tenancy, by itself, would not be sufficient to claim the benefit of Section 21 of the Act. ## 11. In **Mohammed Sageer v. Prakash Thomas** [2005(2) KLT 400], a Division Bench held thus: _“So far as subletting is concerned, there is no case for the tenant that any consent was obtained from the landlord to sublet the premises. It is also not proved that the lease confers on the tenant a right to sublet. Mere knowledge of the landlord about the occupation of the tenanted premises by the sublessee will not create a subtenancy which is binding on the landlord. (See_ _**Ram Saran v. Pyarelal & anr.** (AIR 1996 SC 2361)._ ## 12. The decision reported in **Mohammed Sageer v.** **Prakash Thomas** [2005(2) KLT 400] was followed by another Division Bench in the decision reported in **Abdul Hai, N and others v. Nandakumar K. and others [** ILR 2012 (2) Kerala _O.P.(R.C.) No.3659 of 2012_ **==> picture [14 x 9] intentionally omitted <==** 715]. In **Abdul Hai, N and others v. Nandakumar K. and others,** it was held that mere knowledge of the landlord that the building was sub let is not sufficient to presume acquiescence on his part and consent of the landlord cannot be presumed on the basis of inaction on his part to initiate proper proceedings. 13. We are of the view that the petitioner has failed to establish that she is a sub-tenant or that the alleged sub-tenancy was created with the knowledge and consent of the landlord. We hold that the petitioner has no independent right in the tenanted premises. For the aforesaid reasons, the O.P.(R.C.) is dismissed. **K.T. SANKARAN, (JUDGE)** **M. L. JOSEPH FRANCIS, (JUDGE)** dl/