M.R. Sanjay v. Chankalath Meenakshi Amma and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY ,THE 26TH DAY OF NOVEMBER 2018 / 5TH AGRAHAYANA, 1940** **RCRev..No. 325 of 2013** **AGAINST THE JUDGMENT DATED 19.02.2013 IN RCA 10/2008 of THE RENT CONTROL APPELLATE AUTHORITY, THRISSUR AGAINST THE ORDER DATED 20.11.2007 IN RCP 85/2005 of RENT CONTROL COURT,CHAVAKKAD REVISION PETITIONER/RESPONDENT NO.2 BEFORE THE COURT BELOW/ADDL.3RD RESPONDENT BEFORE THE RENT CONTROL COURT:** **M.R. SANJAY, AGED 40 YEARS,** **S/O. SARASWATHY RAJ, 'PADMASREE', ST.VINCENT COLONY ROAD, KOZHIKODE-673 006.** **BY ADV. SRI.P.RAMACHANDRAN** **RESPONDENTS/APPELLANT & RESPONDENTS 1, 3 AND 4 BEFORE THE COURT BELOW/PETITIONER AND RESPONDENTS 2, 4 AND 5 BEFORE THE RENT CONTROL COURT:** - **1 CHANKALATH MEENAKSHI AMMA, AGED 76 YEARS, W/O. PARATH GOPINATHAN NAIR, LAKSHMI NIVAS, EAST NADA, GURUVAYOOR-680 101, THRISSUR DISTRICT.** - **2 K.P.DASAN, AGED 45 YEARS, S/O. SANKUNNI NAIR, PUTHENVEETTIL, THIRUVENKITAM, GURUVAYOOR P.O., THRISSUR DISTRICT-680 101.** - **3 M.R.SHANTHI, D/O. SARASWATHI RAJ, 'PADMASREE', ST.VINCENT COLONY ROAD, KOZHIKODE-673 006.** - **4 M.R.SINDHU, D/O. SARASWATHI RAJ, 'PADMASREE', ST.VINCENT COLONY ROAD, KOZHIKODE-673 006.** ## **BY ADVS.SRI.G.SREEKUMAR (CHELUR)** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 26.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No. 325 of 2013** **-:2:-** ## **O R D E R** ## **K. Harilal,J.** **The revision petitioner is the tenant in R.C.P. No. 85 of 2005 on the files of the Rent Control Court, Chavakkad as well as the respondent in R.C.A. No. 10 of 2008 on the files of the Rent Control Court Appellate Authority, Thrissur. This revision petition has been filed challenging the order of eviction passed in the aforesaid appeal reversing the order dismissing the Rent Control Petition passed by the aforesaid Rent Control Court. Thus, the divergent findings of the court below passed under Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act ('the Act' for short) are challenged in this revision petition for the examination of the legality, propriety** **RCRev..No. 325 of 2013** **-:3:-** **and regularity of the same. [The parties are referred to as in the Rent Control Petition].** **2. The Rent Control Petition was originally filed against respondents 1 and 2 therein under Section 11(4)(i) of the Act alleging that the first respondent has sub-let the petition schedule building to the second respondent. The 2[nd] respondent is conducting hotel business in the petition schedule premises and the 2[nd] respondent was paying a daily rent of Rs.400/to the 1[st] respondent. Before filing the counter statement, the 1[st] respondent died and respondents 3 to 5 were impleaded as legal heirs of the deceased 1[st] respondent.** **3. The 2[nd] respondent has filed a counterstatement, contending that he is the Manager of the 1[st] respondent and that he is not a subtenant of the 1[st] respondent. So, the petitioner is not entitled to get an order of eviction under Section 11(4)(i) of the Act.** **RCRev..No. 325 of 2013** **-:4:-** **4. The respondents 3 to 5 filed counter, contending that the petition schedule premises was originally entrusted with the 1[st] respondent, the father of the respondents 3 to 5, about 35 years back. They denied the allegation that the 1[st] respondent has sublet the tenanted premises to the 2[nd] respondent. According to them, after the death of the 1[st] respondent, it is the 3[rd] respondent, who is conducting the business in the petition schedule premises. With the aforesaid averments, the respondents prayed for dismissal of the rent control petition.** **5. On the aforesaid pleadings, both parties adduced evidence and after considering the evidence on record, the Rent Control Court found that the petitioner has failed to prove the allegation that the 1[st] respondent has sub-leased the tenanted premises to the 2[nd] respondent, and the 2[nd] respondent is in exclusive possession and enjoyment of the petition schedule premises.** **RCRev..No. 325 of 2013** **-:5:-** **But, in the aforesaid appeal preferred by the petitioner, the Rent Control Appellate Authority reversed the aforesaid finding and allowed the appeal, on a finding that the petitioner has succeeded in proving the allegation that the 1[st] respondent has sub-leased the tenanted premises to the 2[nd] respondent. Thus, the aforesaid divergent findings, have come up in revision before us.** **6. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents.** **7. The learned counsel for the 2[nd] respondent contended that the Appellate Authority has went wrong by relying on Ext.C1 commission report and Exts.A7 to A9, to arrive at a finding that the 1[st] respondent has subleased the tenanted premises to the 2[nd] respondent. According to the learned counsel, Ext.C1 report was an** _**ex parte**_ **commission report** **RCRev..No. 325 of 2013** **-:6:-** **and the Commissioner was not examined in evidence. Therefore, the Rent Control Appellate Authority ought not have relied on Exts.C1 and C2. Secondly, it is contended that Exts.A7 to A9 were not proved in evidence, in accordance with law. But, the court below has relied on Exts.A7 to A9 also. Thirdly, the court below has went wrong by not relying on Exts.B1 to B8.** **8. Per contra, the learned counsel for the petitioner submits that though Exts.C1 and C2 commission reports were** _**ex parte**_ **commission report and sketch, no objection was filed against the said report and the absence of objection amounts to admission, as to the correctness of the report and in such a circumstance, the Appellate Authority is justified in relying on Exts.C1 and C2, though the Commissioner was not examined in evidence. Further, it is contended that Exts.A7 to A9 were properly proved in evidence, as the same was** **RCRev..No. 325 of 2013** **-:7:-** **produced by PW.1 and she was confronted with the said documents.** **9. The first question to be considered is, whether there is any illegality or impropriety in the findings, whereby the Rent Control Appellate Authority relied on Ext.C2 commission report, when the Commissioner was not examined in evidence? It is true that Ext.C1 was an** _**ex parte**_ **commission report and the Commissioner was not examined in evidence. The legal position stands settled by the decision of this Court in** _**Achuthan v. Kunhipathumma**_ **[1967 KLT 326] is that an** _**ex parte**_ **commission cannot be relied on, without examining the Commissioner. But, in the instant case, admittedly, no objection was filed** **to the commission report, though it was an** _**ex parte**_ **commission report. The absence of objection to the commission report would give rise to an irresistible inference that the 2[nd] respondent has no objection against the contents** **RCRev..No. 325 of 2013** **-:8:-** **of the commission report. We are of the opinion that the absence of objection to the commission report would amount to an implied admission, as to the correctness of the report. That apart, under Order 26 Rule 9 of the Code of Civil Procedure, 1908, it is open to the Court to pass an** _**ex parte**_ **order for the issue of a commission for investigation even before the defendant has entered appearance. In the instant case, the commission was appointed to conduct, a surprise check, as to find out who was conducting the business in the tenanted premises. For such a purpose, it was not desirable to issue notice to the 2[nd] respondent.** **10. Going by the facts of the case reported in** _**Achuthan'**_ **s case (supra), we find that in the case referred to in the said decision, the defendant has filed objection to the commission report. But, the court relied on an** _**ex parte**_ **commission, without examining Commissioner,** **RCRev..No. 325 of 2013** **-:9:-** **despite the objection filed by the respondent. But, going by Ext.C1 report, it could be seen that though the commission was appointed before issuing notice to the respondents, the Commissioner has given notice to the 2[nd] respondent before his inspection. Further, we find that the dictum laid down in** _**Achuthan'**_ **s case (supra) cannot be applied to the instant case, as none of the respondents have filed objection to the commission report. Hence, the Appellate Authority is justified in relying on Ext.C1 commission report and Ext.C2 sketch.** **11. Coming to the reliance placed on Exts.A7 to A9, we find that Exts.A7 to A9 are not documents which kept in the possession of the petitioner. Ext.A7 is a show-cause notice issued by the Assistant Labour Officer, Chavakkad to the 2[nd] respondent and in the said notice, the 2[nd] respondent is described as employer of the hotel, by name, 'Santha Bhavan'.** **RCRev..No. 325 of 2013** **-:10:-** **Ext.A8 is a letter sent by the 2[nd] respondent to the petitioner and Ext.A8 was admitted in evidence through PW.1, the person to whom the letter was sent. The respondents have no case that Ext.A8 is a concocted document, or it was not written by the 2[nd] respondent. The 2[nd] respondent also has not challenged the genuineness of Ext.A8 letter sent by him to the petitioner. Moreover, the court below specifically observed that no question was put to PW.1, challenging the genuineness of Ext.A8 letter in her cross-examination, by the respondents. Ext.A9 and Ext.A9(a)are telephone bills issued by Bharat Sanchar Nigam Limited, Thrissur District to the 2[nd] respondent. It is a bill raised by a Government of India Enterprise against the 2[nd] respondent, as a customer of the Bharat Sanchar Nigam Limited. It is true that Ext.A9 bills were issued during the pendency of the rent control petition. But,** **RCRev..No. 325 of 2013** **-:11:-** **we are of the opinion that since the bills were issued by the Government of India Enterprise to the 2[nd] respondent, there is no reason to doubt the genuineness of the said bill. Thus, the Rent Control Appellate Authority has rightly relied on Exts.A7 to A9. Going by the order passed by the Rent Control Court, we find that the Rent Control Court has discarded Exts.A7 to A9, without any reasoning.** **12. Coming to Exts.B1 to B8, we find that Ext.B1 is a licence issued in the name of the deceased 1[st] respondent and Exts.B2 to B8 are receipts issued by the Municipality to the deceased 1[st] respondent. We are of the opinion that, while considering genuineness of sublease, the fact that the licence is in the name of the statutory tenant, cannot be taken as a decisive material, ignoring the possibility of another person being in actual possession of the tenanted premises. Even after sub-leasing the** **RCRev..No. 325 of 2013** **-:12:-** **tenanted premises to another person in a clandestine manner, the statutory tenant can obtain or renew the licence in his name, so as to make it appear that he is actually conducting the business. Therefore, the licence or tax receipts issued by the Municipality cannot be taken a conclusive proof of the actual conduct of the business, by the statutory tenant himself in the tenanted premises. As rightly observed by the Rent Control Appellate Authority, in the instant case, no positive evidence has been adduced to prove that the respondents 3 to 5 have been conducting hotel business in the** **tenanted premises.** **13. More importantly, going by the pleadings, it could be seen that the 2[nd] respondent has admitted that he has been conducting hotel business in the tenanted premises, as Manager of the 1[st] respondent,** **whereas the respondents 3 to 5 have no such case** **RCRev..No. 325 of 2013** **-:13:-** **and they contended that after the death of the 1[st] respondent, it is the 3[rd] respondent, who is running the business in the petition schedule shop room. Further, they admitted that after the death of the 1[st] respondent, they entrusted the conduct of the hotel business with the 2[nd] respondent for the time being. Thus, the respondents 3 to 5 themselves have admitted the presence of the 2[nd] respondent in the tenanted premises, in connection with the conduct of the business. Therefore, it was incumbent upon the respondents 3 and 5 to prove the actual jural relationship between the 2[nd] respondent and the respondents 3 to 5. But, no evidence had been adduced to prove the jural relationship between the 2[nd] respondent and respondents 3 to 5.** **14. In the above view also, we find that the Rent Control Appellate Authority is justified in finding that the petitioner has succeeded in proving that the 1[st] respondent has** **RCRev..No. 325 of 2013** **-:14:-** **sub-leased the tenanted premises to the 2[nd] respondent. There is no illegality or impropriety in the findings, whereby the Rent Control Appellate Authority relied on Ext.C1 commission report, Ext.C2 sketch and Exts.A7 to A9.** **Hence, this revision petition is devoid of merits and dismissed accordingly. All pending Interlocutory Applications will stand closed.** **Sd/-** **K.HARILAL** **JUDGE** **Sd/-** **ANNIE JOHN** **JUDGE** DST //True copy// P.A. To Judge