Sathiaselan and Sree Narayana Library and Reading Room Sports and Arts Club v. Supriya Sudhakaran and Sudhakar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 4[TH] DAY OF AUGUST 2022 / 13TH SRAVANA, 1944** **R.C.REV.NO. 181 OF 2019** **AGAINST THE JUDGMENT DATED 03.01.2019 IN R.C.A.NO.78 OF 2015 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), IRINJALAKUDA AND THE ORDER DATED 20.08.2015 IN R.C.P.NO.16 OF 2014 OF THE RENT CONTROL COURT (MUNSIFF),** ## **KODUNGALLUR** ## **REVISION PETITIONER:** - **1 SATHIASEELAN, AGED 65 YEARS, S/O.MADHAVAN, KARAYIL HOUSE, PERINJANAM VILLAGE, KUDUNGALLUR TALUK, THRISSUR DISTRICT.** - **2 SREE NARAYANA LIBRARY AND READING ROOM SPORTS AND ARTS CLUB, REPRESENTED BY PRESIDENT, SATHIASEELAN, - DO-** **BY ADV M.K.DILEEP KUMAR** ## **RESPONDENTS:** - **1 SUPRIYA SUDHAKARAN, AGED 46 YEARS, W/O.SUDHAKARAN, KALAPURAKKEL HOUSE, PERINJANAM VILLAGE, KUDUNGALLUR TALUK, THRISSUR DISTRICT - 680 001.** **2 SUDHAKARAN, AGED 56 YEARS, S/O.PARAN, KALAPURAKKAL HOUSE, PERINGANAM VILLAGE, KODUNGALLUR TALUK, THRISSUR - 680 011.** 2 R.C.Rev.No.181 of 2019 **BY ADVS. SRI.P.M.ABDUL JALEEL (KODUNGALLUR) SHRI.HASHIM V.H.** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 25.07.2022, THE COURT ON 04.08.2022 DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.181 of 2019 ## **O R D E R** ## Ajithkumar, J. The respondents-landlords filed R.C.P.No.16 of 2014 before the Rent Control Court (Munsiff), Kodungallur, seeking eviction of the petitioners under Sections 11(2)(b) and 11(4) (i) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court allowed the petition under both grounds. The petitioners preferred an appeal under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District Judge), Irinjalakuda as R.C.A.No.78 of 2015. The appeal was allowed in part. The order of eviction under Section 11(2)(b) was set aside; however, order of eviction under Section 11(4)(i) of the Act was confirmed. Aggrieved thereof, the petitioners have filed this revision under Section 20 of the Act. 2. The Revision was admitted to file on 28.05.2019. Execution of the order of eviction was stayed as per order in I.A.No.1 of 2019 initially for a period of three months. The order of stay was extended from time to time. 4 R.C.Rev.No.181 of 2019 3. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents. 4. The allegations with which the petition for eviction was filed are that the petitioners have defaulted payment of rent since 23.04.2003 and that the 1[st] petitioner sublet the petition schedule room to the 2[nd] petitioner in contravention of the lease arrangement. The petitioners resisted the petition for eviction by filing a counter. They denied the allegation of arrears of rent. It was contended that the 1[st] petitioner availed the room for conducting a library by the name Sree Narayana Library and Reading Room Sports and Arts Club. From the very beginning, the room has been used for the said purpose. There is therefore no subletting. The matter was duly intimated to the respondents. But the petition for eviction was filed with some oblique motive. 5. PW1 was examined and Exts.A1 to A6 were marked on the side of the respondents. RW1 was examined and Exts.B1 to B9 were marked on the side of the petitioners. 5 R.C.Rev.No.181 of 2019 After considering the said evidence in detail, the Rent Control Court found that the petitioners defaulted payment of rent from 23.04.2003 onwards and that the 1[st] petitioner is the person, who took the room on rent, but he eventually had sublet the room to the 2[nd] petitioner. In the appeal, the said findings were assailed. The Appellate Authority as per the judgment dated 03.01.2019 held that the finding with respect to the arrears of rent was unsustainable in law, and therefore, the eviction ordered by the Rent Control Court under Section 11(2)(b) of the Act was set aside. The Appellate Authority further held that going by the terms of Ext.A1 rent agreement, the 1[st] petitioner had no right to sub let; whereas admittedly the room is being used by the 2[nd] petitioner, a registered society, which is a separate legal entity. Accordingly, the order of eviction on the ground of subletting was confirmed. 6. The learned counsel appearing for the petitioners would contend that it is evident from the recitals in Ext.A1 that the petition schedule room was availed on rent by the 1[st] 6 R.C.Rev.No.181 of 2019 petitioner for being used as a library. Ever since it was taken on rent, the room has been used for accommodating the library run by the society named Sree Narayana Library and Reading Room Sports and Arts Club, to which the 1[st] petitioner is the President. The learned counsel would contend that the only thing that transpired in between is the registration of the society, but that has not brought about any change to the character of the tenant. It is pointed out that in the complaint filed by the respondent in Police, Ext.B1, it was admitted that the society was the tenant. The petition for eviction was filed only because the petitioners have a grievance that the library was not being functioned under the SNDP but by a different society. Accordingly, it is contended that the finding entered into by the courts below regarding sub-lease is totally incorrect. 7. There is prohibition of subletting in Ext.A1 rent agreement. There is no dispute with respect to that aspect. The specific allegation of the respondents is that the 1[st] petitioner after taking the room on rent in his personal 7 R.C.Rev.No.181 of 2019 capacity, he parted with the possession in favour of the 2[nd] petitioner, which is a registered society, having the characteristics of a body corporate. Since such a transfer of possession violates the provisions of Ext.A1, there is subletting liable to invite an action for eviction under the provision of Section 11(4)(i) of the Act. 8. As per Section 11(4)(i) of the Act, a landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building, if the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub-lets the entire building or any portion thereof if the lease does not confer on him any right to do so. As per the proviso to Section 11(4)(i), an application under this clause shall not be made for the first time in respect of one and the same tenancy unless the landlord has sent a registered notice to the tenant intimating the contravention of the said condition of the lease and the tenant has failed to terminate the transfer or the sub-lease, as the case may be, within thirty days of the 8 R.C.Rev.No.181 of 2019 receipt of the notice or the refusal thereof. As per Explanation to Section 11(4)(i), where on the partition of a joint family or of the rights of co-tenants, or on the dissolution of a firm, the right of the joint family or the co-tenants or the firm under a lease is vested in a member of the joint family, or a co-tenant or a partner, as the case may be, whether by an act of parties or otherwise, no transfer by the tenant of his right under the lease shall be deemed to have taken place within the meaning of this clause. ## 9. In **Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar [(2010) 1 SCC 217]** the Apex Court summarised the legal position regarding the essence of sub-letting, mode of its proof and onus of proof, as follows,- “(i) In order to prove mischief of sub-letting as a ground for eviction under rent control laws, two ingredients have to be established (one) parting with possession of tenancy or part of it by the tenant in favour of a third party with exclusive right of possession, and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent. 9 R.C.Rev.No.181 of 2019 (ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the Court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant. (iii) The existence of deed of partnership between the tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross - examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person. (iv) If the tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession. (v) Initial burden of proving sub-letting is on the landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to the tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises. 10 R.C.Rev.No.181 of 2019 (vi) In other words, initial burden lying on the landlord would stand discharged by adducing prima facie proof of the fact that a party other than the tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted." 10. In **Usman K. S. v. Vidyavathi @ Vidya Kalesan and others [2014 (1) KHC 830]** a Division Bench of this Court held that, as held by the Apex Court in **Celina Coelho Pereira** (supra), the initial burden of proving sub-lease is on the landlord, and once it is discharged by him, the tenant will have to explain the presence of the alleged tenant in the premises, and he will have to prove that it is not a case of sub-lease. 11. RW1, the 1[st] petitioner, admitted that the room is now being used for the functioning of the library under the auspices of Sree Narayana Library and Reading Room Sports and Arts Club and that it is a registered society. Once a society is registered, it does have an independent existence. Whether or not it is enough to transfer possession by the 1[st] petitioner in favour of the 2[nd] petitioner is yet a question to be 11 R.C.Rev.No.181 of 2019 considered in the light of provisions in Ext.A1 and other facts and circumstances of the case. 12. The specific recital in Ext.A1 is that the 1[st] petitioner availed the room on rent for the functioning of a library. The 1[st] petitioner is the President of the 2[nd] petitioner society. PW1, the 2[nd] respondent, does not dispute that the 1[st] petitioner is the President of the society and that the 1[st] petitioner is in charge of the library. In that context, the allegations levelled by the respondents in Ext.B1 complaint preferred before the police are relevant. It was alleged therein that the petition schedule room was let out to the 1[st] petitioner on the condition that the room would be used to accommodate a library-cum-reading room under the auspices of SNDP. Therefore, the understanding between the parties, at the very beginning itself, was that the room was let out for the functioning of a library not by the 1[st] petitioner in his personal capacity. Of course, the library is not being run by the SNDP, but by the 2[nd] petitioner society. When the respondents candidly admit that the purpose of letting out 12 R.C.Rev.No.181 of 2019 was to run a library and reading room by an organisation and not by the 1[st] petitioner personally, the petitioners cannot now allege sublease only for the reason that the 1[st] petitioner personally has not been conducting the library. In such circumstances, it cannot be said that there is parting with possession of the petition schedule shop room by the 1[st] petitioner so as to invite the mischief of Section 11(4)(i) of the Act. 13. Applying the principle laid down in the aforesaid decisions, it cannot be said that there occurred an unauthorised sub-lease by the reason of functioning of the library on the auspices of the 2[nd] petitioner. Therefore, we hold that the view taken by the courts below resulting in an order of eviction on the ground of subletting, is incorrect and unsustainable in law. Hence, we hold that the order dated 20.08.2015 in R.C.P.No.16 of 2014 of the Rent Control Court and the judgment dated 03.01.2019 in R.C.A.No.78 of 2015 of the Appellate Authority allowing eviction under Section 11(4)(i) of the Act are liable to be set aside. 13 R.C.Rev.No.181 of 2019 The revision is accordingly allowed. R.C.P. No.16 of 2014 is dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** dkr