Sailesh, Rajaneesh and Muraleedharan v. Siddique, Rasheed and Nazar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 RCRev..No. 262 of 2008() -----------------------RCA.29/2008 of DISTRICT COURT, THRISSUR RCP.7/2007 of MUNSIFF COURT, KODUNGALLUR .................... (S): REVISION PETITIONERS/APPELLANTS/RESPONDENTS --------------------------------------------------------------- 1. SAILESH, AGED 40 YEARS, S/O POOVATHUMKADAVIL SUSHEENDRAN, SREENARAYANAPURAM VILLAGE,DESOM, KODUNGALLUR TALUK. 2. RAJANEESH, AGED 40 YEARS, S/O POOVATHUMKANDYIL SUDHEENDRAN, SREENARAYANAPURAM VILLAGE,DESOM, KODUNGALLUR TALUK. 3. MURALEEDHARAN, AGED 43 YEARS, S/O CHIRAKKAL MANOHARAN, PAPPINIVATTOM VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.R.SUDHIR RESPONDENT(S): RESPONDENTS/PETITIONERS -------------------------------------- 1. SIDDIQUE, AGED 56 YEARS, S/O KARUKAPPADATH UTHAMANCHALIL ABDULRAHMANKUTY, EDAVILANGU VILLAGE, DESOM, KODUNGALLUR TALUK. 2. RASHEED, AGED 54 YEARS, S/O KARUKAPADATH ABDULRAHMANKUTTY, EDAVILANGU VILLAGE, DESOM, KODUNGALLUR TALUK. 3. NAZAR, AGED 51 YEARS, S/O KARUKAPADATH UTHAMANCHALIL ABDULRAHMANKUTTY, EDAVILANGU VILLAGE, DESOM, KODUNGALLUR TALUK. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 28/10/2008, THE COURT ON 31/10/2008 PASSED THE FOLLOWING: ## ORDER IN I. A. NO.2384/2008 ## DISMISSED 31/10/2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE ## **P.R.Raman & T.R. Ramachandran Nair, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **R.C.R. No.262 of 2008** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of October, 2008.** ## **O R D E R** ## Ramachandran Nair, J. Against the concurrent orders passed by the authorities below directing eviction of the petitioners from the building, they have approached this court by filing this revision petition under Section 20 of the Kerala Buildings (Lease & Rent Control) Act (hereinafter referred to “as the Act”). The landlords herein sought eviction under Sections 11(2)(b) and 11 (4)(i) of the Act. 2. We have heard Shri R. Sudhir, learned counsel for the petitioners and Shri K.R. Kurup, learned counsel for the respondents who appeared on caveat. 3. Learned counsel for the petitioners submitted that even going by the case pleaded and proved by the respondents/landlords before the court below, the elements to prove that the building has been sub-leased to the third petitioner herein have not been established by them. It is submitted that evidence is lacking to prove that there is transfer of possession or any objectionable sub-lease. Relying upon the notice, Ext.A7 which was issued RCR 262/2008 -2- in the year 2001, it is pointed out that even after sending the notice, for six years no steps were taken to evict the tenants alleging sub-lease which also shows lack of bonafides in the allegations raised. 4. Learned counsel for the respondents, after referring to the findings rendered by the Rent Control Court submitted that the tenants had no consistent plea and at the stage of evidence they have brought a new case which was never pleaded in the objections in the Rent Control Petition. Our attention was drawn to the relevant findings of the authorities below in support of the above argument. 5. Herein, the landlords obtained the building from one Ramakrishnan by virtue of document No.2922/1992. It was contended that petitioners 1 and 2 herein who were respectively respondents 1 and 2 before the Rent Control Court, were the tenants of the schedule shop room. They took the building on lease from its previous owner, Shri Ramakrishnan and they continued their tenancy under the present landlords, the monthly rent being Rs.750/-. The rent was paid till April, 1999 and thereafter they committed default in paying it. They have sublet the petition schedule building to the third petitioner herein who was respondent No.3 before the Rent Control Court, without the knowledge and consent of the landlords. He is conducting a telephone booth in the petition schedule room. RCR 262/2008 -3- 6. The plea raised by the petitioners/tenants are mainly that it was the third petitioner herein who was the original tenant and was conducting the S.T.D. Booth after getting the room from the previous owner, Shri Ramakrishnan. Later on, with the consent and knowledge of the said previous owner, petitioners 1 and 2 along with the third petitioner started conducting the photostat business on partnership basis. It is therefore submitted that there is no sub-lease of the premises. 7. P.Ws.1 to 3 have been examined on the side of the landlords and Exts.A1 to A10 were marked. Exts.C1 and C1(a) are the commission report and sketch. R.W.1 was examined on the side of the petitioners and Exts.B1 to B5 and X1 have been marked on their side. In support of the plea, P.W.1 gave evidence. He relied upon the notice sent on 7.8.2001 (Ext.A5). The subsequent notice sent is on 5.2.2007. 8. The evidence adduced by the tenants show that the telephone booth is conducted pursuant to the application, Ext.X1 submitted by the third petitioner herein to the telephone department. Ext.B4 is the registration obtained from the Labour Department and Ext.B3 series are the profession tax receipts. Neither side have chosen to produce the rent deed. Therefore, the authorities below have considered the oral and documentary evidence to ascertain whether it is the petitioners 1 and 2 who are the RCR 262/2008 -4- original tenants or the third petitioner herein is the original tenant as pleaded by them. Even though the previous owner Shri Ramakrishnan was examined as P.W.2, no worthwhile material came out from him, since he was not remembering the names of the persons to whom the room was rented out. 9. The evidence of R.W.1 showed that the third petitioner was conducting S.T.D. Booth from 1992 onwards. But in cross examination he developed a new case that the building was originally taken on lease by one Gopikrishnan and petitioners 1 and 2 were conducting photostat business along with Gopikrishnan in the petition schedule building. Subsequently, when he obtained a job, he left the business and the tenancy was transferred in their name. This case was developed only at the stage of cross examination. This runs contrary to the case pleaded in the objections placed before the court and in the proof affidavit. Apart from the said assertion, there was no evidence to prove that the building was taken on rent by Gopikrishnan. Therefore, the case canvassed by the petitioners was self contradictory and inconsistent. Apart from that, the third petitioner herein who was the third respondent before the Rent Control Court, did not give any oral evidence by entering the witness box. If actually he was the original tenant as pleaded in the objections, evidence should have been let RCR 262/2008 -5- in to support the plea. **10.** This is a case where the presence of the third petitioner in the premises is admitted by petitioners 1 and 2. Therefore, the burden is on them to prove that there was no objectionable sub-lease. The Rent Control Court relied upon the principles stated by this court in **Raghavan v. Sreedhara Panicker** (2001 (1) KLT 772) and **Kochu Thressia v. Albert** (2007 (4) KLT 1) to conclude that mere awareness of the landlords of the conduct of telephone booth by the third petitioner cannot lead to the inference that there was consent and knowledge on the part of the landlords for the alleged sub-lease. In these circumstances, the Rent Control Court granted eviction in favour of the landlords. 11. The Appellate Authority has considered the evidence elaborately. Even though learned counsel for the revision petitioners contended that the circumstances of the case will lead to an inference of a joint partnership by all the three petitioners, we are afraid the evidence does not indicate anything of that sort. The petitioners have failed to prove the same. As rightly found by the Appellate Authority also, the evidence adduced by the tenants is contradictory to their pleadings. There was no evidence to show that the building was originally taken on rent by the third petitioner and that RCR 262/2008 -6- they were conducting a joint business. 12. We find no reason to interfere with the orders passed by the authorities below. As noted by the authorities below, the landlords have discharged their burden by proving that the third petitioner is conducting a telephone booth in the building in question. According to them, there was no tenancy arrangement between the landlords and the third petitioner. The petitioners could not prove anything to support the plea that the building was originally taken on rent by the third petitioner from the previous landlord. In these circumstances, as the details of the relationship between petitioners 1 and 2 and the third petitioner are exclusively within their knowledge, the burden is on them to prove that there was no objectionable sub lease. Prior knowledge or consent before the subletting is the requirement under the statute. On the evidence, no other conclusion is possible than that was arrived at by the authorities below. The conclusions arrived at by them are cogent and convincing. Therefore, we dismiss the revision petition, but in the circumstances of the case, we grant one month's time from today to vacate the premises on the following conditions: i) That the entire arrears of rent, if any, shall be deposited before the Execution Court within a period of 10 days from today and the RCR 262/2008 -7- petitioners shall also file an affidavit within the said time undertaking to give vacant possession of the tenanted premises on or before the expiry of the period of one month from today, i.e. on or before 31.11.2008. ii) that the tenants shall not induct any third party into the premises; iii) that an amount equivalent to the rent towards use and occupation of the building shall be regularly paid by the tenants until vacant possession is given; and iv) that if for any reason the tenants fail to comply with any of the aforesaid conditions, the order of eviction passed by the court below will forthwith become enforceable. ## **( P.R.Raman, Judge.)** ## **(T.R. Ramachandran Nair, Judge.)** **kav/**