P. Syamala v. Subir Puthukkudy Kunhiharath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY, THE 24TH DAY OF SEPTEMBER 2018 / 2ND ASWINA, 1940** **RCRev.No. 268 of 2018** **AGAINST THE JUDGMENT DATED IN 19.06.2018 IN RCA 17/2016 of RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT-II), KALPETTA, WAYANAD** **AGAINST THE ORDER DATED 20.06.2016 IN RCP 10/2012 of RENT CONTROL COURT (MUNSIFF)/ RENT CONTROLLER (MUNSIFF), KALPETTA)** ## **REVISION PETITIONER/ APPELLANT IN RCA/ RESPONDENT IN RCP :** **P.SYAMALA, AGED 53 YEARS, W/O.SASIDHARAN, RESIDING AT AAYILLIAM, KAIRALI NAGAR, GOODALAI, KALPETTA P.O., KALPETTA AMSOM AND DESOM, VYTHIRI TALUK, WAYANAD DISTRICT.** **BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA** ## **RESPONDENT/ RESPONDENT IN RCA/ PETITIONER IN RCP :** **SUBIR PUTHUKKUDY KUNHIHARATH, S/O.LATE P.K.ABDUL RAHIMAN, AGED 46, RESIDING AT SAMEENA MANZIL, KOTTAPPADY AMSOM AND DESOM, PUTHOORVAYAL P.O., VYTHIRI TALUK, WAYANAD DISTRICT - 673 577.** **BY ADV. SRI.JACOB SEBASTIAN** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 24.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **RCRev.No. 268 of 2018** 2 ## **ORDER** ## _**K. Harilal, J.**_ The revision petitioner is the tenant against whom the respondent filed RCP.No.10/2012 before the Rent Control Court, Kalpetta. RCP.No.10/2012 was filed under Sections 11(4)(i) and 11(4)(v) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (Hereinafter referred to as, 'the Act'). (The parties are referred to as in the Rent Control Petition). 2. The case of the petitioner/ landlord is that the respondent has sub let the petition schedule shop room to one Prasanth without the consent of the petitioner and the said Prasanth has been conducting the business in the petition schedule shop room. Therefore, he is entitled to get an order of eviction under Section 11(4)(i) of the Kerala Buildings (Lease & Rent Control) Act, 1965 [Hereinafter referred to as,'the Act']. Further, it is alleged that the petitioner ceased to occupy the petition schedule **RCRev.No. 268 of 2018** 3 shop room, for the last more than six months without sufficient cause. Therefore, he is entitled to get an order of eviction under Section 11(4)(v) of the Act also. 3. The respondent filed counter statement denying the sub lease and cessation of occupation alleged by the petitioner. According to the respondent, the said Prasanth is an employee of the petitioner for conducting the business in the petition schedule shop room. As regards the cessation of occupation, according to the respondent, he has not ceased to occupy the petition schedule building and he had been conducting business in the petition schedule shop room. 4. On the aforesaid rival pleadings, both parties adduced evidence. The petitioner was examined as PW2 and his power of attorney was examined as PW1 and Exts.A1 to A15 were marked in the joint trial along with other five Rent Control Petitions. No oral evidence was adduced by the respondent. But, Exts.B11 to B31 were marked. Exts.C1 and C2 are the Commission Reports. **RCRev.No. 268 of 2018** 4 5. After considering the evidence on records, the courts below concurrently found that the petitioner has succeeded in proving that the respondent has sub let the petition schedule shop room to one Prasanth and further found that he has ceased to occupy the petition schedule shop room for the last more than six months from the date of filing the petition. The Appellate Court also concurred with the aforesaid finding and dismissed the appeal filed by the revision petitioner. Thus, the legality and correctness of the aforesaid findings have come up in this revision petition. 6. Heard the learned counsel for the revision petitioner. 7. It is the specific case of the petitioner that the respondent has sub let the petition schedule shop room to one Prasanth. But, the respondent denied the said contention and according to him, the said Prasanth is his employee engaged for conducting the business in the petition schedule shop room. The legal position stands well settled that the initial burden is on the landlord to prove **RCRev.No. 268 of 2018** 5 that the tenant has sub leased the tenanted premises to another without his consent or knowledge. In order to discharge the initial burden of proof, the petitioner has taken a Commissioner to ascertain the occupancy position of the tenanted premises. In Ext.C1 Commission Report, the Advocate Commissioner, who inspected the property has reported that one Prasanth was found managing the business in the petition schedule shop room and he could see another man also in the room for assisting the said Prasanth. 8. In _**Unni Vacco v. Thankamma Gregory [2003 KHC 436]**_ , this Court held that 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. In view of the aforesaid decision, the petitioner has succeeded in discharging the initial burden to prove that the business was being conducted by the said Prasanth. According to the respondent, he was managing the business as his employee only. Then, the burden will shift to the respondent/ tenant to establish the **RCRev.No. 268 of 2018** 6 employer-employee relationship alleged by him. In order to rebut the initial burden, the respondent has produced Exts.B11 to B26 documents. Exts.B1 to B14 are professional tax receipts. Exts.B15 and B16 are original licence fee receipts for the period 2013-2014. Ext.B17 is the original attendance register. Exts.B18 to B21 are original membership certificate of Kerala Vyapari Vyavasayi Ekopana Samithi. Exts.B22 to B25 are original electricity bill and Ext.B26 is the original purchase invoice (Page 165). It is true that all the aforesaid documents stand in the name of the petitioner. But, we are of the opinion that the production of those documents will not prove that the petitioner has been actually conducting the business in the petition schedule shop room. 9. The question to be considered is, who was actually conducting the business at the time of filing the Rent Control Petition. No document has been produced to prove that the petitioner has been actually conducting the business in the petition schedule shop room. We are of the opinion that sub lease is a clandestine transaction without **RCRev.No. 268 of 2018** 7 the knowledge of the landlord. Therefore, the licence or membership in Vyapari Vyavasayi Ekopana Samithi or the electricity bills which stand in the name of the tenant cannot be taken as conclusive proof to prove the actual conduct of the business in the petition schedule shop room. He could have produced the accounts, purchase bills or the register evidencing name of the employees, maintained under the Shops and Establishment Act and other documents or registers obtained or maintained in the course of business to prove that he himself has been actually conducting the shop or Prasanth is an employee under him. More importantly, the respondent has not chosen to enter the witness box and offer himself for cross examination and the same is fatal to him. 10. It is pertinent to note that no evidence has been produced to establish the jural relationship between the petitioner and the said Prasanth. When the presence of the said Prasanth was established by the Commission Report, it was incumbent upon the respondent to prove the jural relationship. In the absence of such evidence, an **RCRev.No. 268 of 2018** 8 adverse inference can be drawn under Section 114(g) of the Evidence Act to the effect that, had those documents been produced in evidence, those documents could have shown otherwise. 11. In the above view, we find that there is no illegality or perversity in the appreciation of the aforesaid evidence and the petitioner has succeeded in proving the allegations of sub lease and cessation of occupation. We do not find any reason to interfere with the concurrent findings of the court below. 12. Coming to the order of eviction passed concurrently under Section 11(5) of the Act, it is the case of the petitioner that the respondent ceased to occupy the petition schedule shop room continuously for more than six months without sufficient cause. Here also, the initial burden is on the landlord and the landlord has taken a Commission to report the occupancy position of the petition schedule shop room as on the date of filing the Rent Control Petition. In order to prove the cessation of occupation, the petitioner was examined as PW2 and the **RCRev.No. 268 of 2018** 9 Commission Report was marked as Exts.C1 and C2. Exts.C1 and C2 would show that a firm by name 'Anarkali Fancy and Gifts' is being conducted in the petition schedule shop room. There is no evidence to prove that the petition schedule shop room was remaining closed at the time of inspection of the Commissioner. It was reported by the Commissioner that the shop room was found open. 13. In the above context, the decision reported by this Court in _**Pulikkool Thazhekuniyil K. Dhineshan and Another v. Peediyekkantavida Kunhimoosa**_ _**[2017 (4) KHC 691]**_ assumes significance and relevance. In the aforesaid decision, this Court held that the cessation of occupation as contemplated under Section 11(4)(v) is non occupation of the tenanted premises either by the tenant or by any person claiming under him, which would intake even a sub lessee. Therefore, if the shop by name Anarkali Fancy and Gifts was being conducted by the sub lessee, it can be held that the petitioner has ceased to occupy the petition schedule shop room. But, there is no evidence to prove the cessation of occupation for the **RCRev.No. 268 of 2018** 10 required statutory period of six months. Unless it is proved that the petitioner has ceased to occupy the petition schedule shop room for the last six months, immediately before the filing of the Rent Control Petition, no order of eviction can be passed under Section 11(4)(v) of the Act. So, the petitioner is not entitled to get an order of eviction under Section 11(4)(v) of the Act. In the above view, the order of eviction passed under Section 11(4)(v) of the Act will stand set aside and the order of eviction passed under Section 11(4)(i) of the Act will stand confirmed. Sd/- **K.HARILAL JUDGE** Sd/- **ANNIE JOHN JUDGE** RKM