Punnayulla Parambath Pradeepan v. Kulamulla Thannipanthalil Avulla and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE &** **THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN** **THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932** **RCRev..No. 91 of 2006() -----------------------** **RCA.96/2005 OF RENT CONTROL APPELLATE AUTHORITY & ADDL. DISTRICT COURT, VADAKARA. RCP.89/2004 OF RENT CONTROL COURT, NADAPURAM** **....................** **PETITIONERS:** - **----------------------** **1. PUNNAYULLA PARAMBATH PRADEEPAN, AGED 45, S/O. KUNHIKANARAN, VELLIYOD AMSOM BHOOMIVATHUKKAL DESO, VADAKARA TALUK.** **2. P. GOPIJNATHAN NAIR, AGED 63 YEARS, TELEPHONE BOOTH, ROOM NO.N.P.XI/616, PIPE ROAD JUNCTION, KALLACHI, KUMMANKODU AMSOM, NADAPURAM DESOM, VADAKARA TALUK.** **BY ADV. SRI.R.K.MURALEEDHARAN** **RESPONDENTS:** **----------------------** **1. KULAMULLA THANNIPANTHALIL AVULLA S/O. AMMED, AGED 57, KUMMANKODU AMSOM NADAPURAM DESOM, VADAKARA TALUK.** **2. BROTHER ABOOBACKER, AGED 52, KUMMANKODU AMSOM, NADAPURAM DESOM, VADAKARA TALUK.** **3. PUTHIYOTTIL CHANDRAN, AGED 40 YEARS, S/O. CHANDU, VELLIYOD AMSOM, BHOOMIVATHUKKAL DESOM, VADAKARA TALUK.** **R1 & 2 BY ADV. SRI.P.K.SURESH KUMAR SRI.K.P.SUDHEER** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25.11.2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **vk** **PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ---------------------------R.C.R.No.91 OF 2006 ----------------------------Dated this the 25[th] day of November, 2010** ## **O R D E R ~~~~~~~** ## **Pius C. Kuriakose, J.** Under challenge in this revision filed under Section 20 by the tenant and the alleged sub lessee (R1 and R3 in the Rent Control Petition) is the judgment of the Rent Control Appellate Authority ordering eviction against them on the ground under clause (i) of sub section 4 of section 11 (on the ground of sub lease/transfer). It is agreed by both sides that in this revision we don't have to be concerned with the eviction ground of arrears of rent which was also invoked by the the landlords in the RCP. The landlords' case in the context of ground under 11 (4)(i) was that the petition schedule premises in which respondents 1 and 2 in the RCP were conducting a textile business is presently sub let or transferred to the 3[rd] respondent in the RCP, who is conducting business of Photostat as well as STD booth. Denying the allegation of the landlords, it was contended by the revision petitioners through a joint counter R.C.R. No.91/2006 2 which they filed, that there is no sub lease or transfer, that the photostat business which is being conducted in a portion of the room belongs exclusively to the 1[st] revision petitioner and that the STD booth business is being conducted by both the revision petitioners together in partnership. The Rent Control Petition went for trial and the evidence before the Rent Control Court consisted of Exts.A1 to A4, B1 to B5 and the oral evidence of RW1, who is none other than the 1[st] revision petitioner. Significantly, the landlords did not adduce any oral evidence. On evaluating the evidence, the Rent Control Court concluded that the landlord was unsuccessful in establishing the ground under Section 11(4)(i). Serious note was taken by the learned Rent Control Court in this context of the failure of the landlord to adduce any oral evidence to support the case of sub lease. The learned Appellate Authority considered the appeal preferred by the landlord, reappraised the pleadings and evidence thoroughly and would reverse the finding of the Rent Control Court regarding the ground under Section 11(4)(i). According to that Authority, this is a case where the presence of the 2[nd] revision petitioner, who is a stranger to the lease, is admitted by the R.C.R. No.91/2006 3 respondent/tenant. In such a situation, it is for the 1[st] respondent/tenant to plead and prove as to what is the jural relationship between them. The Appellate Authority also noticed that in as much as, it is admitted that the STD booth business stands in the name of the 2[nd] revision petitioner and it is contended that the said business is being conducted jointly by the 1[st] and 2[nd] revision petitioners, it has to be taken that the physical presence of the 2[nd] revision petitioner is admitted. In other words, the learned Appellate Authority concluded on the basis of the evidence oral, documentary and circumstantial that this is a case where admittedly the possession of a portion of the building has been transferred to the 2[nd] revision petitioner. In that view of the matter, the leaned Appellate Authority reversed the finding of the Rent Control Court, found that the ground under Section 11(4)(i) stands established due to unauthorised transfer of possession and accordingly ordered eviction allowing the RC.P. 2. In this revision under Section 20, various grounds have been raised challenging the judgment of the Appellate R.C.R. No.91/2006 4 Authority. It was very extensive and persuasive submissions which were addressed before us by Sri.R.K.Muralidharan, learned counsel for the revision petitioners. Sri.Muralidharan's submissions were all resisted by Sri.K.P.Sudheer, learned counsel for the respondents/landlord. Sir. Muralidharan would submit that inorder that eviction ground under Section 11(4)(i) is established, it is necessary that the landlord proves either sublease of the building or a portion of the building by the tenant to the alleged sub lessee or transfer of possession of the building or a portion of the building to the alleged sub lessee. According to the learned counsel, it is not all admitted by the tenant/ 1[st] revision petitioner that the alleged sub lessee/2[nd] revision petitioner is physically present in the petition schedule building. It was admitted that the STD booth business is a partnership business in which as a partner the 2[nd] revision petitioner is involved. That doesn't amount to an admission of the physical presence of the 2[nd] revision petitioner in the premises. The learned counsel drew our attention to Ext.B1 and highlighted that in Ext.B1 it is very clearly stated that neither possession nor tenancy rights are given to the 2[nd] revision petitioner. The R.C.R. No.91/2006 5 failure of the landlord to adduce oral evidence in support of the case of transfer/sub lease was also highlighted by Sri.Muraleedharan. The only evidence available is the evidence of RW1 and the documentary evidence. These items of evidence will not support the finding that there is transfer of possession. Sri.Muraleedharan would fortify his submissions on the authority of the judgments of the Supreme Court in **Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar** [2010(1) SCC 217] and **Nirmal Kanta v. Ashok Kumar** [2008(4) KLT SN24]. According to the learned counsel, the learned Appellate Authority has proceeded basically on a wrong premise that the presence of the 2[nd] revision petitioner is admitted. Because of that, the whole judgment of the Appellate Authority has become tainted. Hence, there is warrant of interference under Section 20. 3. Mr.K.P.Sudheer, learned counsel for the respondents, would draw our attention to the pleadings raised by the revision petitioners and highlighted that the statutory notice under the proviso to Section 11(4)(i) as well as the notice of the Rent R.C.R. No.91/2006 6 Control Petition itself were served on the 2[nd] revision petitioner in the petition schedule building. He would also highlight that in this RCR the 2[nd] revision petitioner described himself in the address of the petition schedule building. Drawing our attention to the pleadings of the revision petitioners and the oral evidence of the RW1, the learned counsel submitted that it is admitted that the STD booth business is being conducted jointly in partnership by the revision petitioners. It is also admitted by necessary implications that the 2[nd] revision petitioner is also present along with the 1[st] revision petitioner. The counsel submitted that absolutely no documentary evidence is produced by the revision petitioners to prove that R1 and R2 in the RCP were previously conducting textile business and that presently STD booth business is being conducted in partnership by the revision petitioners. The learned counsel would rely on the judgment of this Court in **Nazarudeen v. Padmakaran** [2004(1) KLT SN 77 (Case No.99)] and argue that when a defence of partnership is set up to an action on the ground of subletting the courts should be very slow in accepting the defence unless the partnership is a registered one. R.C.R. No.91/2006 7 4. We have very anxiously considered the rival submissions addressed by the learned counsel. We have scanned the judgment of the Appellate Authority as well as the order of the Rent Control Court. The question that arises for consideration by us is whether the judgment of the Appellate Authority finding that the eviction ground under Section 11(4)(i) stands established and ordering eviction on that ground warrants interference within the contours of the revisional jurisdiction under Section 20. We have no difficulty to answer the above question against the revision petitioners and in favour of the respondent/landlord. We are not impressed by the submission of Mr. Muraleedharan that the landlord has not proved the physical presence of the 2[nd] revision petitioner in the petition schedule building. In fact, it is fundamental that what is admitted need not be proved. It is admitted by the revision petitioners through the joint objections which they filed, that the revision petitioners are together conducting STD booth business in a portion of the petition schedule building. It is admitted by RW1 in his chief examination (affidavit in lieu of chief R.C.R. No.91/2006 8 examination) itself that the STD booth business is being conducted by him in partnership with the 2[nd] revision petitioner. The arguments that a partner need not be physically present cannot be accepted by us since we don't find a plea that the 2[nd] revision petitioner is only a sleeping partner, who does not have any active role in the conduct of business. True Ext.B1 consent deed contains a recital to the effect that the tenancy right or possession is not given to the 2[nd] revision petitioner. But, a careful reading of Ext.B1 will show that the first revision petitioner and his fellow tenant (R2 in the RCP) have allowed the 2[nd] revision petitioner, the alleged sub lessee, to conduct the STD booth sanctioned to the 2[nd] revision petitioner by the telephone department from a portion of the petition schedule building. We fail to see how the 2[nd] revision petitioner can conduct the STD booth sanctioned to him by the department whether by himself or in partnership to the 1[st] revision petitioner without being present in the petition schedule building. In fact, it is not pleaded in the statement of objections that the STD booth business is being conducted by the revision petitioners together and that actual conduct of business is not by the R.C.R. No.91/2006 9 1[st] revision petitioner. In his evidence also, RW1 stands by what he has pleaded. The circumstance that the statutory notice as well as the court notice were served on the 2[nd] revision petitioner in the petition schedule building is rightly relied on by the learned Appellate Authority. We don't find any illegality irregularity or impropriety about the appreciation of the evidence by the Appellate Authority nor about the finding entered by the Appellate Authority. The judgment of the Supreme Court in **Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar** (supra) only reiterates the indisputable position of law that inorder that an eviction ground similar to Section 11(4)(i) is established, there must be either evidence regarding sublease or evidence regarding unauthorised transfer of possession. As we are in agreement with the finding of the Appellate Authority that there is unauthorised transfer of possession, the Supreme Court judgment in **Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar** (supra) cannot come to the rescue of the revision petitioners. The judgment by the Supreme Court in **Nirmal Kanta v. Ashok Kumar** (supra) also will not be of any assistance to the revision petitioners. That R.C.R. No.91/2006 10 was a case where the tenant was conducting textile business and in a portion of the premises the alleged sub lessee a tailor was doing tailoring work. The tenant's defence was that there is no sublease or transfer of possession to the tailor but that the tailor is only a licencee who he accommodated for promoting the textile business. In the instant case, significantly, there is no defence that the 2[nd] revision petitioner is only a licencee. 5. Result of the above discussion, will lead to the dismissal of this RCR . We dismiss the RCR. However considering the fervent appeal of Mr.Muraleedharan for grant of a long period of time for surrendering the premises, we are inclined to direct the Execution Court to keep in abeyance proceedings for delivery till 30.6.2011 subject to the following conditions: Both the revision petitioners shall file affidavits before the Execution Court, within three weeks from today undertaking to give peaceful surrender of the petition schedule building in entire to the respondents on or before 30.6.2011. It will also be undertaken through the same affidavit that arrears of rent due in R.C.R. No.91/2006 11 respect of the building till date will be paid within one month from today and that occupational charges at the current rent rate of Rs.330 per month will also be paid till the actual date of surrender. 6. We make it clear that the revision petitioners will get the benefit of time granted above only, if the affidavit is filed in time and the undertakings are honoured without fail. ## **(PIUS C.KURIAKOSE, JUDGE)** **(P.S.GOPINATHAN, JUDGE)** ## **ps**