IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
THURSDAY, THE 29TH DAY OF MAY 2014/8TH JYAISHTA, 1936
RCRev..No. 61 of 2014 ()
------------------------AGAINST THE JUDGMENT IN RCA 6/2009 OF RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT COURT-I),THALASSERY DATED 13-11-2013
AGAINST THE ORDER IN RCP 155/2007 OF RENT CONTROL COURT, KANNUR DATED 25.9.2008
REVISION PETITIONER(S): LRs OF APPELLANT/LRs OF RESPONDENT
--------------------------------------------------------------------------------------------
1. MAIMOONATH.P.K., AGED 55 YEARS W/O.K.P.MUHAMMED HAJI, ANAS MANZIL, MELEKANDI PARAMBA O.B.ROAD, ARTS COLLEGE POST MEENCHANDA, KOZHIKODE DISTRICT, PIN-673 018
2. BENAZIR, AGED 39 YEARS
D/O.K.P.MUHAMMED HAJI, ANAS MANZIL, MELEKANDI PARAMBA O.B.ROAD, ARTS COLLEGE POST MEENCHANDA KOZHIKODE DISTRICT, PIN-673 018
3. SHAWAS, AGED 37 YEARS S/O.K.P.MUHAMMED HAJI, "SHAMNAS" NEAR HOMEO CLINIC, ARAYANKANDY PARAMBA POST AZHEEKODE, KANNUR DISTRICT PIN.670 009.
BY ADVS.SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH SRI.J.ABHILASH
RESPONDENT(S): RESPONDENTS 2 TO 6/2ND PETITIONER & SUPPL. ----------------------------------------------------------- PETITIONERS 3 TO 6
1. PILAKKEEL AYISHABI, AGED 69 YEARS W/O.P.BAMPAN HAJI, SAHIRA MANZIL NALUPURA KANNUR CITY, PIN- 670 003.
2. SABIRA, D/O.BAMPAN HAJI, AGED 51 YEARS "NAIMAS", PALOT VAYAL, POST AZHEEKODE KANNUR, PIN.670 009.
3. KHAIRUNNISA, AGED 47 YEARS D/O.BAMPAN HAJI, SAHIRA MANZIL, NALUPURA POST AZHEEKODE, KANNUR, PIN.670 009.
RCR NO.61/2014
4. MUHAMMED JASIN, AGED 42 YEARS
- S/O.BAMPAN HAJI, -DO- , NALUPURA POST AZHEEKODE, KANNUR, PIN.670 009.
5. NURIA, D/O.BAMPAN HAJI, AGED 36 YEARS
- -DO- NALUPURA, POST AZHEEKODE, KANNUR PIN.670 009.
R1 BY ADV. SRI.K.C.SANTHOSHKUMAR R BY ADV. SMT.K.K.CHANDRALEKHA
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 29-05-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
**K.T.SANKARAN & A.MUHAMED MUSTAQUE, JJ.** --------------------------------------
## R.C.R.No.61 of 2014
-------------------------------------Dated this the 29[th] day of May, 2014
## **Muhamed Mustaque, J.**
## _**O R D E R**_
The revision petitioners are the legal heirs of the original
tenant who died pending the rent control proceedings. Respondents are also the legal heirs of the original landlord, namely, Bampan Haji.
2. The landlords filed Rent Control Petition No.155 of 2007 before the Rent Control Court, Kannur, seeking eviction of the tenant under Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'), alleging that the tenant had created a sub-lease in favour of a third party and he is conducting hotel business in the tenanted premises. It has come out that the landlords also have instituted
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another eviction petition (R.C.P.No.121 of 2005) against the predecessor-in-interest of the petitioners under Sections 11(3) and 11(4)(iii) of the Act. The above case was dismissed by the Rent Control Court. After the dismissal of R.C.P.No.121 of 2005, the landlords filed the present Rent Control Petition. The Rent Control Court allowed the Rent Control Petition under Section 11(4)(i) of the Act. The tenant challenged the order of the Rent Control Court in appeal before the Appellate Authority as R.C.A.No.6 of 2009. The Appellate Authority, as per the judgment dated 13.11.2013, confirmed the order of the Rent Control Court.
3. We heard the learned counsel for the revision petitioners/tenants and the learned counsel appearing for the respondents/landlords. Both the counsel have placed relevant materials pertinent to the pleadings and evidence before us at the time of hearing.
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4. At the time of institution of the Rent Control Petition itself, a Commissioner was appointed for local inspection. The Advocate Commissioner reported that he saw Nandini in the cash counter of the hotel. It appears that Nandini also stated before the Commissioner that the hotel is being run by Sreevalli and the agreement executed between Sreevalli and the tenant was shown to the Advocate Commissioner. The original Commission was an expert Commission. The report of the Advocate Commissioner was remitted at the instance of the tenant. In the report filed after the inspection, the Advocate Commissioner also reported the presence of Sreevalli. The courts below noted the presence of third parties based on the evidence adduced by the parties and also from the Commissioner's report. The courts below also relied on the cross examination of RW1 in which he admitted that there was an agreement between himself and Sreevalli. However, it is
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contended that such agreement was only for the purpose of availing Bank loan. The court below came to the conclusion that the tenant failed to explain the presence of third party in the hotel. The case set up by the tenant is that Sreevalli is an employee in the hotel. In the absence of any evidence, the court below did not accept the contention put forward by the tenant that Sreevalli was an employee under the tenant.
5. Challenging the orders, the counsel for the revision petitioners/tenants submitted that there was no mandatory notice preceded by the petition. The notice appears to have been addressed to the place where the tenant is residing. He also submits that the alleged sub-lessee is not a party in the proceedings and non-mention of particulars of the alleged sublessee is fatal to the proceedings. He also points out that in the petition for eviction, the landlords mentioned that gender of third party as a male by pointing out in pleading in petition at
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paragraph 4, wherein it is mentioned that the “petition schedule building is in occupation of a third party, the sub-lessee and he is conducting hotel in the tenanted premises”. The learned counsel also assails the orders with reference to the statement given by Nandini at the time of inspection made by the Commissioner.
6. The learned counsel for the respondents/landlords relied on the decision of this Court in **Mini vs. Leela (2004 (1) KLT 195)** and also **Kalyani Bharathan vs. Abdul Muthalif (2005(1) KLT 880)** and submits that the failure on the part of the landlord to specify the name of sub-lessee in the notice would not render the notice invalid. It is further submitted by the learned counsel for the landlords that it is the burden on the part of the tenant to substantiate the jural relation with the alleged employee namely, Sreevalli.
7. Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act laid down that the landlord has the right to
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evict the tenant if the tenant transfers his right under lease or creates sublease and lease does not confer him to do so. Section 21 of the Act states that an order of eviction of a tenant passed under the 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.
8. This Court in **Kalyani Bharathan vs. Abdul Muthalif (2005(1) KLT 880)** , held that the emphasis in the above provision is on the objectionable conduct of the tenant in committing breach of the terms of the lease and not on the objectionable presence of the sub-lessee. That is presumably the reason why under Section 21 of the Act a specific provision is made that an order for eviction of a tenant shall be binding on the sub tenant also whether he is a party to the proceedings or not.
9. When possession of the tenanted premises is
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transferred or when the tenant ceased to an exclusive possession of the tenanted premises to a third party, the landlord is not expected to make an enquiry about the identity of the person, to whom the possession is transferred. The landlord is concerned only regarding parting the possession or creating sublease and not regarding the identity of the person to whom it is transferred. The moment such transfer has become objectionable under the lease, the cause of action arise to the landlord. Therefore, Section 21 of the Rent Control Act arms the landlord to file a petition for eviction even without sublessee on the party array. This is because the jural relationship is between the landlord and the tenant and question that is to be considered is whether the tenant has contravened the terms of the lease. The argument of the learned counsel that what is pointed out in the petition as sub-lesee's gender does not have any significance in the light of the discussion as made above, as we have already noted that
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identity of the person is not important while finding that the tenant has transferred or created sublease of the tenanted premises. With regard to contention about deficiency of the notice, we are of the view that tenant has no case that address shown in the notice does not belong to him. Therefore, we hold that notice is proper.
10. The Rent Control Court and the Appellate Authority considered the evidence in right perspective and concluded that the tenant failed to substantiate the claim of Sreevalli as an employee. On the other hand, the Rent Control Court, based on the admission made by the tenant that there was an agreement between Sreevalli and the tenant, came to the conclusion that the tenanted premises has been transferred exclusively in favour of Sreevalli. The court below also noted that in Exhibits B1 and B2, the name of the hotel is Hotel Brothers. However, when the Commissioner inspected, it was noted that the name of the hotel
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is Nandu. The finding of the court below is based on the evidence and the report made by the Commissioner.
We do not find any reason to interfere with the findings of fact arrived at by the courts below. Accordingly, we dismiss the Rent Control Revision.
**K.T.SANKARAN JUDGE**
**A.MUHAMED MUSTAQUE JUDGE**
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