POOMANGALORAKATH KAPPALLI SUBAIR and POOMANGALORAKATH KAPPALLI MUJIB RAHMAN v. MEETHALE PURAYIL SUHARA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 7[TH] DAY OF DECEMBER 2022 / 16TH AGRAHAYANA, 1944** **RCREV. NO. 336 OF 2019** **AGAINST THE ORDER DATED 28.03.2016 IN RCP NO.37 OF 2012** **OF THE RENT CONTROL COURT (MUNSIFF), THALIPARAMBA CONCURRING WITH THE COMMON JUDGMENT IN RCA NO.98 OF 2016 DATED 22.02.2019 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE - III), THALASSERY** ## **REVISION PETITIONERS/RESPONDENTS/RESPONDENTS (TENANTS):** - **1 POOMANGALORAKATH KAPPALLI SUBAIR, AGED 52 YEARS, S/O. ABDULLA, RESIDING AT AYISA MANZIL, C.H.ROAD, SYED NAGAR, TALIPARAMBA, KANNUR-670141.** **2 POOMANGALORAKATH KAPPALLI MUJIB RAHMAN, S/O. ABDULLA, AGED 50 YEARS, RESIDING AT AYISA, MANZIL, C.H. ROAD, SYED NAGAR, TALIPARAMBA, KANNUR-670141.** **BY ADV MAHESH V RAMAKRISHNAN** ## **RESPONDENT/APPELLANT/PETITIONER (LANDLADY):** **MEETHALE PURAYIL SUHARA, D/O. BADARUDDIN MASTER, AGED 73 YEARS, EZHOME, ERIPURAM, CHENGAL, P.O. EZHOME, KANNUR-670334.** **BY ADVS. SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 07.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.Rev. No.336 of 2019 -: 2 :- ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ. -----------------------------------------------** ## **R.C. Rev. No.336 of 2019** ## **-----------------------------------------------** ## **Dated this the 7[th] day of December, 2022** ## **O R D E R** ## **P.B.Suresh Kumar, J.** The tenants in a petition for eviction under Sections 11(2)(b), 11(4)(i) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act), are the petitioners in this revision petition. The Rent Control Court rejected the claim of the landlady on all the heads. In appeal, the Appellate Authority, however, reversed the decision of the Rent Control Court and ordered eviction of the tenants under all the three heads. The tenants are aggrieved by the said decision of the Appellate Authority and hence, this revision petition. 2. The subject matter of the proceedings is a shop room in the ground floor of a double storeyed building owned by the landlady. The premises was let out to the tenants who are brothers on 23.05.2003 on a monthly rent of Rs.1,900/-. There are two other shop rooms also in the ground floor of the building where the landlady is engaged in the sale of cattle feed, poultry feed etc. The case set out by the landlady in the eviction petition is that the R.C.Rev. No.336 of 2019 -: 3 :- tenants have not paid rent for the period from August, 2003 and that they have not responded to the registered notice issued by the landlady demanding arrears of rent. It is also the case of the landlady that the tenants have sub-let the tenanted premises to one Nazar without her consent. It is the further case of the landlady that she requires additional accommodation for running the business that is carried on by her in the adjoining premises. 3. The tenants filed objections to the eviction petition contending mainly that they have been remitting rent in respect of the tenanted premises to the landlady till the institution of the eviction petition and the landlady is not in the habit of issuing receipts for the same. It was also contended by the tenants that even though the building was let out to them for the purpose of running a bakery, as the said business was not found to be viable, they are running a vegetable business in the premises and that they have not sub-let the building to anyone. It was further contended by the tenants that the landlady has other premises in the very same building and that the need set out by her for additional accommodation is therefore, not _bona fide_ . 4. As noted, the Rent Control Court rejected the claim for eviction under all the three heads. As regards the claim for eviction under Section 11(2)(b), the view taken by the Appellate Authority is that if as a matter of fact, the landlady refused to R.C.Rev. No.336 of 2019 ## -: 4 :- acknowledge receipt of the rent, the tenants ought to have resorted to the procedure prescribed in Section 9(2) of the Act and insofar as the tenants have not resorted to the said procedure, the Rent Control Court ought to have accepted the case of the landlady that the rent of the tenanted premises has been in arrears since August, 2003 and that the tenants have not paid the same on receipt of the statutory notice. When the Advocate Commissioner appointed in the proceedings inspected the tenanted premises, the tenants were not found in the premises. Instead, the Advocate Commissioner found two other persons engaged in vegetable business in the said premises. Among them, one Ismail P.K was in the cash counter. The Advocate Commissioner also reported that the licence issued for the business carried on in the premises was not available at the time of inspection and instead, what was found by him was a membership certificate issued by the “Vyapari Vyavasayi Ekopana Samithi” showing the name of one P.K.Muhammed as the person who is running the business therein. The Appellate Authority, in the circumstances, took the view that it was obligatory on the part of the tenants to show that they were conducting business at the relevant time, by producing their licence and should have satisfactorily explained their absence in the shop at the time of inspection by the Advocate Commissioner and further as to how P.K.Muhammed shown in the membership certificate of “Vyapari R.C.Rev. No.336 of 2019 -: 5 :- Vyavasayi Ekopana Samithi” could obtain such a membership in respect of the business carried on in the tenanted premises. Having found that the tenants have not discharged the said obligations, the Appellate Authority accepted the case of the landlady that the tenanted premises had been sub-let by the tenants. The Advocate Commissioner also reported that the landlady is running a business in the adjoining premises and that the said premises occupied by the landlady is crammed with goods dealt with by her. In the light of the report of the Advocate Commissioner, the Appellate Authority held that the need for additional accommodation set out by the landlady is _bona fide_ . It is on the aforesaid premise, the Appellate Authority reversed the decision of the Rent Control Court and ordered eviction under all three heads sought by the landlady. 5. Heard the learned counsel for the tenants as also the learned counsel for the landlady. 6. The learned counsel for the tenants contended that the eviction petition being one instituted in the year 2012, the claim made by the landlady that the rent payable in respect of the tenanted premises has been in arrears since August, 2003, is not maintainable, since a substantial portion of the alleged arrears of the rent claimed by the landlady is barred by limitation. It was also contended by the learned counsel that the specific case pleaded by the landlady in the eviction petition is that the tenants have sub-let R.C.Rev. No.336 of 2019 -: 6 :- the tenanted premises to one Nazar and insofar as the landlady has not established the said case, the Appellate Authority ought not have upheld the claim under Section 11(4)(i) of the Act. It was further argued by the learned counsel that the Appellate Authority upheld the claim under Section 11(4)(i) solely on the basis that the tenants were not found in the tenanted premises at the time of inspection by the Advocate Commissioner and that they had not produced the licence obtained for the business carried on in the premises at the relevant time. According to the learned counsel, the aforesaid circumstances do not lead to the inference that there is sub-letting of the tenanted premises. It is all the more so since, one among the persons found in the premises at the time of inspection by the Advocate Commissioner was none other than the brother of the tenants, submits the learned counsel. It was also argued by the learned counsel that Ext.B4 receipt issued by the Panchayat in the name of one of the tenants towards payment of trade licence fee has not been taken into account by the Appellate Authority while rendering its finding on the claim made by the landlady for eviction under Section 11(4)(i). The learned counsel has further argued that there is no evidence as to the quantum of business carried on by the landlady in the tenanted premises. It was pointed out that the landlady who is stated to be running business has not come forward to give evidence in the proceedings also. In the circumstances, R.C.Rev. No.336 of 2019 ## -: 7 :- according to the learned counsel, the Appellate Authority ought not have accepted the case of the landlady under Section 11(8) of the Act. In essence, the submissions made by the learned counsel for the tenants is that the Appellate Authority ought to have affirmed the decision of the Rent Control Court. Per contra, the learned counsel for the landlady supported the impugned decision of the Appellate Authority pointing out that the same cannot be said to be illegal, irregular or improper, warranting interference by this Court under Section 20 of the Act. 7. We have carefully examined the arguments advanced by the learned counsel for the tenants. 8. As noted, eviction of the tenants was sought under Section 11(2)(b) of the Act on the allegation that the rent of the tenanted premises has been in arrears since August, 2003. The plea of the tenants in the objections filed to the eviction petition being one of discharge, it was obligatory on their part to prove the same. Admittedly, the tenants have not established that they have paid the rent since August, 2003. It is their case that they were unable to prove the discharge as the landlady refused to give receipts for the rent paid, from time to time. When the Statute provides a mechanism to deal with a situation where the landlord evades from giving receipt for the rent tendered, it is obligatory on the part of the tenant to resort to the mechanism provided in the statute either R.C.Rev. No.336 of 2019 ## -: 8 :- by paying the rent by money order or depositing in the bank account of the landlord. Insofar as the tenants have not resorted to the said procedure, the Appellate Authority cannot be blamed for having accepted the case of the landlady that there is arrears of rent since August 2003. The view aforesaid of ours is fortified by the decision of this Court in **Bhaskaran Assan v. Ammukutty Amma** , 1992 (2) KLT 565. The contention raised by the tenants that a substantial portion of the arrears is barred by limitation, is no defence in a proceedings for eviction under Section 11(2)(b), as arrears include time barred arrears too[See **Achamma v. Sankaran Nair,** 1990 (1) KLT SN 26 (Case No.27)]. 9. The next aspect to be considered is the correctness of the finding rendered by the Appellate Authority in respect of the claim made by the landlady for eviction under Section 11(4)(i) of the Act. True, the case set out by the landlady in the eviction petition is that the tenants have sub-let the tenanted premises to one Nazar. As noticed by the Appellate Authority, Ext.A1 kachit, in terms of which the tenants were permitted to occupy the tenanted premises does not authorise or empower the tenants to sub-let the premises. If that be so, in order to claim eviction under Section 11(4)(i), the landlord need only establish that the tenant has parted with possession of the tenanted premises for consideration without the consent of the landlord. It is not obligatory for the R.C.Rev. No.336 of 2019 -: 9 :- landlord to establish the particulars of the person to whom the tenant has sub-let the tenanted premises. In the case on hand, admittedly, the tenants have not produced the licence obtained by them from the local authority for running the business in their premises at the time the Advocate Commissioner inspected the tenanted premises. They have also not produced the licence obtained by them for running the business in the tenanted premises for any period prior or after the inspection of the Advocate Commissioner. The only document produced by them is the receipt issued to one among them by the local authority in the year 2015 evidencing payment towards licence fee. Be that as it may, when the Advocate Commissioner inspected the tenanted premises, the tenants were not available in the premises. Instead, what was noticed by the Advocate Commissioner was that one Ismail was running business in the premises. That apart, as noted, the Advocate Commissioner also noticed that a certificate in respect of the business carried on therein has been issued by the “Kerala Vyapari Vyavasayi Ekopana Samithi” to one P.K.Muhammed. In the absence of any evidence as to the role of the brother of the tenants who was running business at the time of inspection by the Advocate Commissioner and the role of P.K.Muhammed who obtained membership from the “Kerala Vyapari Vyavasayi Ekopana Samithi” in respect of the business carried on therein, the Appellate Authority R.C.Rev. No.336 of 2019 ## -: 10 :- inferred that P.K.Muhammed is conducting business in the shop. In a case of this nature, in the absence of any evidence to show that the tenants are running business in the tenanted premises, the Appellate Authority cannot be found fault with for having made such an inference based on facts. As noted, the feeble argument raised by the learned counsel for the tenants in this regard is that P.K.Muhammed, whose name has been referred to in the certificate issued by the “Vyapari Vyavasaya Ekopana Samithi” is none other than the brother of the tenants. Even assuming that P.K. Muhammed is the brother of the tenants, the Appellate Authority cannot be blamed for having found that the tenanted premises was sub-let by the tenants to P.K.Muhammed, for had this been a case where P.K.Muhammed was only assisting the tenants, we do not think that he would obtain membership from the “Vyapari Vyavasaya Ekopana Samithi” for the business carried on therein. 10. What remains to be considered is the aspect relating to the claim of the landlady for eviction under Section 11(8) of the Act. The fact that the landlady is conducting business in a portion of the building of which the tenanted premises is a part, is not disputed by the tenants. Even though it was contended by the tenants that there are other vacant spaces in the ground floor of the very same building, the same has not been established by the tenants. As noted, the Advocate Commissioner has reported that the R.C.Rev. No.336 of 2019 -: 11 :- premises occupied by the landlady for her business is crammed with goods dealt with by her, indicating a need for additional accommodation. It is in the aforesaid circumstances, the Appellate Authority upheld the claim of the landlady for eviction under Section 11(8). In the light of the discussion aforesaid, we do not find any illegality, irregularity or impropriety in the findings rendered by the Appellate Authority. The revision petition, in the circumstances, is devoid of merits and the same is, accordingly, dismissed. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** ds 11.12.2022