S.K. Syed Ummer Sahib v. Shabandri Real Estate Ltd and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU TUESDAY, THE 5TH DAY OF JUNE 2018 / 15TH JYAISHTA, 1940 RCRev..No. 62 of 2014 RCA 90/2011 of 1ST ADDL.RENT CONTROL APPELLATE AUTHORITY/1ST ADDL.DISTRICT COURT, KOZHIKODE DATED 23-10-2013 RCP 82/1999 of THE RENT CONTROLLER/ADDL.MUNSIFF-I,KOZHIKODE, DATED 14-06-2011 ## REVISION PETITIONER/APPELLANT/RESPONDENT IN RCA AND PETITIONER IN RCP. S.K.SYED UMMER SAHIB, AGED 65 YEARS, S/O.HUSSAIN SAHIB,40/123,MANGALAM PARAMBA,KOZHIKODE, NAGARAM AMSOM,DESOM,KOZHIKODE TALUK. BY ADVS.SRI.R.D.SHENOY (SR.) SRI.K.M.FIROZ SMT.M.SHAJNA SRI.S.KANNAN ## RESPONDENTS/RESPONDENTS IN RCA AND RESPONDENTS IN RCP: 1. SHABANDRI REAL ESTATE LTD - A COMPANY REGISTERED UNDER THE INDIAN COMPANIES ACT,REPRESENTED BY ITS EXECUTIVE DIRECTOR MOHAMMED YUNUS SHABANDRI,S/O.ISMAIL,AGED 51 YEARS,RESIDING AT PANNIYANKARA AMSOM,DESOM,KOZHIKODE TALUK-673019. 2. NAJMUNNISSA, AGED 53 YEARS, W/O.SYED HASSAN,RESIDING AT LUCKY HOUSE,620 IV CROSS BUNDER ROAD,BHATKAL,KARNATAKA,PIN-581320. 3. SYED NATHIQ, 36 YEARS, - S/O.SYED HASSAN,RESIDING AT LUCKY HOUSE,620 IV CROSS BUNDER ROAD,BHATKAL,KARNATAKA,PIN-581320. 4. NAZRIA, 33 YEARS, - D/O.SYED HASSAN,RESIDING AT LUCKY HOUSE,620 IV CROSS BUNDER ROAD,BHATKAL,KARNATAKA,PIN-581320. 5. NAJEEBA, 30 YEARS, - D/O.SYED HASSAN,RESIDING AT LUCKY HOUSE,620 IV CROSS BUNDER ROAD,BHATKAL,KARNATAKA,PIN-581320. 6. SYED NASRULLAH, 28 YEARS, S/O.SYED HASSAN,RESIDING AT LUCKY HOUSE,620 IV CROSS BUNDER ROAD,BHATKAL,KARNATAKA,PIN-581320. RCRev..No. 62 of 2014 -2- 7. SYED NOOR, 27 YEARS, - S/O.SYED HASSAN,RESIDING AT LUCKY HOUSE,620 IV CROSS BUNDER ROAD,BHATKAL,KARNATAKA,PIN-581320. 8. SYED NAYEEM, 25 YEARS, S/O.SYED HASSAN,RESIDING AT LUCKY HOUSE,620 IV CROSS BUNDER ROAD,BHATKAL,KARNATAKA,PIN-581320. 9. SYED NAVEED, 23 YEARS, S/O.SYED HASSAN,RESIDING AT LUCKY HOUSE,620 IV CROSS BUNDER ROAD,BHATKAL,KARNATAKA,PIN-581320. 10. SYED NOAFI, 21 YEARS, - S/O SYED HASSAN,RESIDING AT LUCKY HOUSE,620 IV CROSS BUNDER ROAD,BHATKAL,KARNATAKA,PIN-581320. 11. AFSA, 19 YEARS, - D/O.SYED HASSAN,RESIDING AT LUCKY HOUSE,620 IV CROSS BUNDER ROAD,BHATKAL,KARNATAKA,PIN-581320. - R1 BY ADV. SRI.C.P.MOHAMMED NIAS(CAVEATOR) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12.04.2018, THE COURT ON 05.06.2018 PASSED THE FOLLOWING: K.HARILAL & A.M.BABU, JJ. - - - - - - - - - - - - - R.C.R.62 of 2014 - - - - - - - - - Dated : 5[th] June, 2018 - - - - - - - - - - - - ## ORDER A.M.Babu, J 1.There is only one tenancy. One of the tenants is in revision against an order of eviction. The order was passed under Sec.11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act (for short the Act). The landlord raised one more ground for eviction. That ground was negatived by both the authorities below. The contesting tenant had taken several contentions including a claim for fixity of tenure. Those matters are not open for consideration in the present revision. The rent control court originally allowed eviction under Sec.11(4)(i) of the Act. That order was set aside in appeal by the appellate authority. This court in revision (RCR.427/2005) set aside the judgment of the appellate authority and remanded the case to the rent control court. The landlord was allowed to seek amendment of the petition to have 2 ## **RCR.62/2014** a clear case of sub-lease or transfer of possession. The parties were allowed to adduce further evidence. The landlord amended the petition after the remand and the contesting tenant filed additional counter-statement. The rent control court again allowed eviction under Sec.11(4)(i) of the Act. The appellate authority by its judgment confirmed the order of eviction. The said judgment is impugned in the present revision. We need to consider only the pleadings and evidence relating to the sub-lease or transfer of possession. We refer to the parties as they are shown in the rent control petition. - 2.The case pleaded in the amended petition on sublease or transfer of possession is summarized below : The petitioner company is the landlord. The original tenant was the father of respondents 1 and 2. The 2[nd] respondent died. His heirs are respondents 3 onwards. Respondents 1 and 2 and their father were conducting a hotel by name **RCR.62/2014** 3 Lucky Restaurant. The hotel was closed down by respondents 1 and 2. Portions of the building were sublet to different persons. The different sub-tenants are running their own shops called Lucky collections, Lucky Purdah and Stylo Footwear. The sub-tenants are Parris Aboobacker, Shameer, Naseer, Abdul Rahman and Abdul Jaleel. The sub-leases were not terminated despite receipt of the statutory notice caused to be issued by the petitioner. - 3.The 1[st] respondent who alone contested the case had the following contentions on sub-lease : He and his brother (2[nd] respondent) did not sub-lease or transfer possession of the building to the persons mentioned in the petition or to anybody else. It is false to allege that Lucky Collections and Lucky Purdah are conducted by someone else. It is also false that Shameer and Naseer are conducting Stylo Footwear. The statutory notice issued by the petitioner was met **RCR.62/2014** 4 ## by a proper reply notice. - 4.The petitioner and the 1[st] respondent adduced evidence before the trial court. PWs 1 and 2 were examined and Exts A1 to A13(a) were marked on the side of the petitioner. On the other side, RW1 was examined and Exts B1 to B30 were marked. The trial court as well as the appellate authority found sub-lease and directed the eviction of the respondents. - 5.We heard Sri.R.D.Shenoy and Sri.Mohammed Nias, the learned senior counsel and the learned counsel appearing for the 1[st] respondent and the petitioner respectively. - 6.Sub-lease or transfer of possession of the leased building is the ground taken for eviction. It is for the landlord to establish it. On burden of proof we just need to refer to the decision in Arumukhan v. Rajasekharan (ILR 2000 (1) Kerala **RCR.62/2014** 5 265) . The decision holds that the initial burden to prove a transfer of possession or sub-letting is on the landlord. But, it is held, once he establishes that some person other than the tenant is in occupation of the building and conducting business therein, the burden shifts to the tenant to explain the nature of that person's occupation and to establish on what basis the said person was let into occupation. The petitioner company should fail if it fails to discharge the initial burden on it. - 7.The learned senior counsel appearing for the 1[st] respondent submitted that the trial court as well as the appellate authority proceeded as if the burden was on the tenant to establish absence of sub-lease or transfer of possession. It is indeed true that the court and the authority below did not properly discuss the evidence adduced by the petitioner to decide whether the initial burden on the petitioner was discharged by it. We **RCR.62/2014** 6 therefore carefully read the evidence of PW1 to ascertain whether the initial burden on the landlord was discharged. 8.PW1 is the executive director of the petitioner company. He filed an affidavit in lieu of his examination-in-chief. He swore in it that respondents 1 and 2 had sublet portions of the tenanted building to strangers. PW1 stated that the tenants had closed down their hotel business. PW1 stated further that the shops by name Lucky Collections and Lucky Purdah were being conducted by total strangers. PW1 deposed in his affidavit that the building was divided into three portions and separate businesses were being conducted by different sub-lessees. According to PW1, in one portion the sub-lessee conducts Stylo Footwear and the said portion has a separate entrance. PW1 has asserted that the tenants have no control over the said business. PW1 faced crossexamination. He asserted sub-leases in cross- **RCR.62/2014** 7 examination too. We do not see anything in the cross-examination of PW1 to suspect his evidence. We were not addressed while hearing the arguments why PW1 should be disbelieved. Our attention was not drawn to any statement of PW1 in crossexamination to contend that he spoke falsehood in court. PW1 conceded that he was unaware as to who were the employees in the shops by name Lucky Collections and Lucky Purdah. It was suggested to PW1 in cross-examination that the strangers he saw were the employees in those two shops. PW1 spoke that they were not the employees. PW1 asserted that he saw Abdul Rahman at the cashcounter. According to PW1, Abdul Rahman left and the said shops are now run by Shameer and Naseer. No attempt was made in the cross-examination of PW1 to bring that no strangers were seen by him doing business in his building. The suggestion put to PW1 was that the strangers referred to by him were the employees in those shops. It is for the tenants to prove that the strangers seen by **RCR.62/2014** 8 the landlord in the tenanted premises were the employees of the tenants. PW1 has given sufficient and satisfactory evidence to discharge the initial burden on him. The onus does shift to the 1[st] respondent to establish the true relationship between him and the strangers. - 9.The 1[st] respondent is RW1. He in his proof affidavit denied the sub-lease. He stated that the building was never sublet nor possession of it transferred. He has stated further that the allegation that the shops Lucky Collections and Lucky Purdah are conducted by somebody else is not correct. One thing we specially and specifically noticed is that the 1[st] respondent has only denied in his pleadings and evidence the allegation that someone else is running the three shops. He has not asserted either in his pleadings or in his proof affidavit that he himself is running Lucky Collections, Lucky Purdah and Stylo Footwear. A mere denial of the **RCR.62/2014** 9 allegations in the petition is far inferior to a positive assertion that the tenant himself does all those businesses. Therefore the pleadings and evidence of the petitioner have a clear edge over the plea and evidence of the 1[st] respondent. His position became worst from worse after his crossexamination. 10.RW1 in cross-examination spoke that he stopped the hotel business and was running textile business since 1997. He deposed that he started Stylo Footwear 1½ years before his examination in court. We should state here that the proof affidavit of RW1 is silent about running of Stylo Footwear by himself. RW1 spoke to the effect that separate bills were being issued in respect of the sales in Lucky Purdah and Stylo Footwear, but a single account was being maintained in respect of those businesses. He did not produce the said account to prove himself to be the proprietor of those two businesses. In the re-examination RW1 **RCR.62/2014** 10 has said that he is maintaining separate accounts for Lucky Purdah and Stylo Footwear. The said clarification attempted in the re-examination produced no favourable result for him. We now say that he failed to produce both the accounts. He said that his accounts were being audited and that audit reports were available with him. But he produced none. He deposed that he had no difficulty in producing the bill books relating to Lucky Purdah and Stylo Footwear. But he did not produce the bill books too. It is therefore only a matter for inference that he is not the person in control and custody of the bill books. RW1 claimed to have employed five employees. According to RW1, he maintains a wage register. That too was not produced. The only probable inferences are that he has no such employees, that he does not maintain any such register and that he does not pay wage to any person employed in Lucky Purdah and Stylo Footwear. Ext A11 is a quotation issued from Stylo Footwear. RW1 was **RCR.62/2014** 11 shown Ext A11. He did not say that Ext A11 was a fabricated document or that it had no connection with Stylo Footwear. He admitted that the logo and the KGST and CST numbers shown therein belonged to him. But he had no idea about the three telephone numbers shown in Ext A11. He was sure that those telephone numbers were not his. He was expected to explain how the telephone numbers not even known to him happened to be shown in the letter-head of Stylo Footwear. But he did not explain. Rather, he could not explain. Inference should go against him. We are satisfied from what we have stated above that RW1 is a stranger to Lucky Purdah and Stylo Footwear. 11.A feeble attempt was no doubt made by the 1[st] respondent to make it appear that the businesses run in the tenanted premises were his. He produced Exts B15 to B18 profession tax receipts, Exts B19 to B26 D&O licence receipts, Exts B27 to B28(a) sales tax registration certificates, Ext **RCR.62/2014** 12 B29 shop inspection report issued by the sales tax officer and Ext B30 sales tax assessment order. Exts B15 to B29 stand in the name of the 1[st] respondent. Exts B15 to B29 are not sufficient to prove the actual doing of business by the 1[st] respondent. When registration and assessment stood in the name of a particular person, documents like Exts B15 to B29 would be issued in the name of that person only. Had the 1[st] respondent produced the account book or account books, audit reports, bill books and the wage register referred to by us in the immediately preceding paragraph, Exts B15 to B29 could be considered favourably to him. Even then, the 1[st] respondent would sweat and struggle as he had no explanation as to how came in Ext A11 quotation issued in the letter-head of Stylo Footwear the telephone numbers of persons who were strangers to him. We repeat that Exts B15 to B29 are quite insufficient, in the facts and circumstances of the case, to prove the actual doing of any **RCR.62/2014** 13 business by the tenants in the tenanted premises. - 12.Ext B30 is a sales tax assessment order. Nowhere in it is written the name of the 1[st] respondent. As already seen, Exts B15 to B29 are shown to be issued to him. The name of the assessee as shown in Ext B30 is M/s Lucky Collections Restaurant. How the proprietor by name S.K.Syed Ummer (1[st] respondent) became M/s Lucky Collections Restaurant is a matter to be explained by him. He did not. In fact, he could not. Here comes the relevancy of Ext A12. 13.Ext A12 is the duplicate or triplicate of a partnership deed. One of the signatories therein is the 1[st] respondent himself. The others are Abdul Rahman and Abdul Jaleel who, according to the petitioner, are two of the sub-lessees. RW1 admitted his signature in Ext A12. The document recites that the 1[st] respondent shall be in exclusive possession of the tenanted premises in **RCR.62/2014** 14 which the firm is to do its business. The learned senior counsel for the 1[st] respondent argued that Abdul Rahman and Abdul Jaleel were only the partners of the firm as per Ext A12 and that exclusive possession of the premises was with the 1[st] respondent and therefore there was no sublease. But Ext A12 is a document disowned by the 1[st] respondent. He admitted only his signature in it. Having signed it, he should explain why he signed it. He did not give any explanation. No attempt was made in his re-examination to get an explanation from him. He deposed in crossexamination that he was not a person who would sign documents without reading it. It should therefore be taken that he signed Ext A12 after reading it and after understanding the contents thereof. His evidence that he does not know who are Abdul Rahman and Abdul Jaleel does suggest that he would go to any extent. RW1 denied the partnership. He added that he did not enter into a partnership with Abdul Rahman and Abdul Jaleel **RCR.62/2014** 15 in 1997. It is also his evidence that they were never his partners. We are satisfied from the evidence of RW1 that Abdul Rahman and Abdul Jaleel were never his partners and that no business was run in the tenanted premises by RW1 in partnership with those persons. But RW1 signed a partnership deed along with those two persons. Why ? Obviously Ext A12 was executed to conceal the sub-lease. The unusual term in it that the 1[st] respondent who is shown as a partner therein would not share any loss would also lead to that conclusion. - 14.Ext A13 is a letter or representation written in Urdu. Its translation in English is Ext A13(a). It was addressed to the general secretary of the Bhatkal Muslim jama-ath. Ext A13 is dated 16.8.1999. PW2 has deposed that the Bhatkal jamaath is a registered society. PW2 was its president during 1988 - 2000. He knows the petitioner and respondents 1 and 2. PW2 proved ## **RCR.62/2014** 16 Ext A13 letter and Ext A13(a) translation. PW2 said that Ext A13 letter was discussed in the committee of the jama-ath and minuted. The original of Ext A13 is not traceable, said PW2. He was not cross-examined. We accept his evidence suggesting the genuineness of Ext A13. The same therefore can be read in evidence. Ext A13 was written by the 2[nd] respondent. He stated in it that the 1[st] respondent had sublet the building to one Parris Aboobacker on a monthly rental of Rs 15,000/- and received a huge premium of Rs 10,00,000/-. The grievance voiced in Ext A13 was that the 2[nd] respondent was not given his due share by the 1[st] respondent while subletting the building. Ext A13 thus proves the sub-lease made by the 1[st] respondent. The learned senior counsel for the 1[st] respondent submitted that the alleged admission of the 2[nd] respondent in Ext A13 would not bind the 1[st] respondent. We accept Ext A13 not as an admission of any person. We accept it as a document which proves a fact, namely, the sub- 17 ## **RCR.62/2014** lease to Parris Aboobacker. Ext.A13 thus helps the petitioner to prove the sub-lease to the said person. 15.Ext A1 is the copy of the first notice issued to the tenants by the landlord. It is stated in Ext A1 that the tenants have made alterations to the building to do textile business. According to the learned senior counsel for the 1[st] respondent, going by Ext A1, there was no sub-lease since the alterations were made by the tenants themselves to do textile business. We are unable to accept the argument. No sub-lease is alleged in Ext A1. Three months after the issuance of Ext A1, the petitioner issued Ext A3 notice alleging sublease. That means Ext A1 was issued at a point of time when the petitioner was unaware of the sublease. Therefore the recital in Ext A1 highlighted by the learned senior counsel cannot upset the evidence available in the case on sublease. **RCR.62/2014** 18 - 16.The learned senior counsel submitted that even Ext A3 notice alleging sub-lease was issued to the tenants showing the tenanted premises as the address. Therefore, according to the learned senior counsel, the landlord was aware of the presence of the tenants in the tenanted premises. It was also submitted that the 1[st] respondent accepted the notice issued to him in the said address. We are unable to accept the said arguments too. Issuance of Ext A3 notice showing the tenanted premises as the address does not mean more than that it was issued to the tenants in an address known to the landlord. - 17.Paragraph 5A of the petition was inserted by amendment after the remand of the case. It is alleged therein that the sub-lease to Abdul Rahman and Abdul Jaleel was made pending the rent control proceedings. The learned senior counsel submitted that pendente lite sub-lease cannot be **RCR.62/2014** 19 taken into account to direct eviction under Sec.11(4)(i) of the Act. There was sub-lease when Ext A3 notice was issued. The sub-lease was not terminated by the tenants within 15 days after the receipt of the statutory notice. Thus a cause of action did accrue to the landlord to evict the tenants. The said cause of action is not lost simply because of the substitution of new sublessees by the tenant. That apart, this court said in the order in R.C.R.427/2005 at paragraph 8 as follows : “The commencement of Stylo Footwear is an event subsequent to the initiation of the rent control proceedings. If Stylo Footwear is being conducted by anybody other than the respondents in the RCP the same will definitely amount to a ground for eviction order under Section 11(4)(i) as the respondent did not have a case that it is with authorization from the landlord that Stylo Footwear is being conducted.” The correctness of the said finding of this court cannot be challenged by any of the parties except in the supreme court. The said finding of this court is binding on the parties, the trial court 20 ## **RCR.62/2014** and the appellate authority. The said finding is binding on the coequal bench of this court as well. 18.After having considered the entire matters in their completeness, we are in complete agreement with the concurrent findings of the trial court and the appellate authority. The petitioner proved the ground under Sec.11(4)(i) of the Act. The revision fails. It deserves only a dismissal. However, in the circumstances of the case, we make no order as to costs. ## 19.Dismissed. No costs. Sd/- K.HARILAL Judge Sd/A.M.BABU Judge Mrcs/14.5. /True copy/