T. Muhammed Aslam v. Jaseela L.K. and others

## **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 18[TH] DAY OF JANUARY 2023/28TH POUSHA, 1944 RCREV. NO. 2 OF 2018** **AGAINST THE ORDER/JUDGMENT DATED 25.09.2017 IN RCA NO.5 OF 2016 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL KASARAGOD CONCURRING WITH THE COMMON ORDER IN RCP NO.13 OF 2013 DATED 29.03.2016 OF MUNSIFF** **COURT, HOSDRUG** ## **REVISION PETITIONER/1st RESPONDENT/1 st RESPONDENT:** ## **T. MUHAMMED ASLAM** **AGED 66 YEARS,S/O. K.K HASSAN HAJI, MANIKOTH (P.O),HOSDURG TALUK, KANHANGAD (VIA)KASARAGOD DISTRICT, PIN 671 315** **BY ADVS. SRI.JAWAHAR JOSE SMT.CISSY MATHEWS SRI.SARUN RAJAN** ## **RESPONDENTS/APPELLANT & RESPONDENTS 2 AND 3/ PETITIONER &** ## **2ND RESPONDENT & 3RD RESPONDENT:** - **1 JASEELA L.K. AGED 34 YEARS,D/O. CHENAMMADATH YOUSAF,RESIDING AT ATHINHAL,MANIKOTH (P.O), HOSDURG TALUK, KANHANGAD (VIA)KASARAGOD DISTRICT, PIN 671 315** - **2 MOHAMMED** - **AGED 46 YEARS, U.A.E MOBILE CENTRE, NEAR JUMA MASJID,RAILWAY STATION ROAD,KANHANGAD (P.O) KASARAGOD DISTRICT, PIN 671 315 (DELETED)** 2 R.C.Rev.No.2 of 2018 - **3 NAZAR** **AGED 39 YEARS,U.A.E MOBILE CENTRE, NEAR JUMA MASJID,RAILWAY STATION ROAD, KANHANGAD (P.O)KASARAGOD DISTRICT, PIN 671 315 (DELETED)** **RESPONDENTS R2 AND R3 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER VIDE ORDER DATED 10/01/2023 IN IA.1/2023 IN RCR.2/2018)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 18.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.2 of 2018 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** ## **-----------------------------------------------** ## **R.C.Rev. No.2 of 2018** ## **-----------------------------------------------** ## **Dated this the 18[th] day of January, 2023.** ## **O R D E R** ## **P.B.Suresh Kumar, J.** The tenant in a proceedings for eviction under Sections 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act), is the petitioner in this revision petition. The Rent Control Court dismissed the eviction petition. However, in appeal by the landlady, the Appellate Authority reversed the decision of the Rent Control Court in part and ordered eviction of the tenant under Section 11(4)(i)of the Act. The landlady accepted the said decision of the Appellate Authority. The tenant, however, is aggrieved by the decision of the Appellate Authority and hence this revision under Section 20 of the Act. 2. The subject matter of the proceedings is a shop room let out by the deceased father of the landlady to the tenant for 4 R.C.Rev.No.2 of 2018 conducting footwear business. The case set out by the landlady in the eviction petition is that the tenant has sublet the premises to respondents 2 and 3 for higher rent without the consent of the landlady. The tenant filed objection to the eviction petition denying the allegation of sublease and contended that he is conducting business of electronic goods in the premises and that respondents 2 and 3 are persons engaged by him as sales promoters of the said business. 3. The husband of the landlady gave evidence as PW1. Exts.A1 to A8 are the documentary evidence on the side of the landlady. The tenant gave evidence as RW1. A witness was examined by the tenant on his side as RW2. Exts.B1 to B9 are the documentary evidence on the side of the tenant. Ext.C1 is the report of the Advocate Commissioner appointed in the proceedings. The Advocate Commissioner was also examined in the proceedings as CW1. As noted, though the Rent Control Court dismissed the eviction petition, the Appellate Authority ordered eviction of the tenant under Section 11(4)(i) of the Act. The issue that arises for consideration therefore is as to whether the decision of the Appellate Authority, insofar as it relates to the claim of the landlady under Section 11(4) 5 R.C.Rev.No.2 of 2018 (i) is concerned, suffers from any illegality, irregularity or impropriety. 4. Before dealing with the argument advanced by the learned counsel for the tenant, it is necessary to understand the scope of the jurisdiction of this Court under Section 20 of the Act. It is well settled that the jurisdiction of this Court under Section 20 of the Act is only to ensure that the decisions of the authorities below do not suffer from any illegality, irregularity or impropriety. This Court cannot, therefore, re-appreciate the evidence on record in order to come to a different conclusion on any factual issues, unless the finding can be said to be either erroneous or perverse. It has been held by the Apex Court in **Hindustan Petroleum Corpn. Ltd.** **v. Dilbahar Singh** , (2014) 9 SCC 78 that only findings of facts which have been arrived at without consideration of the material evidence, or findings which are based on no evidence or misreading of the evidence, or findings which, if allowed to stand, would result in gross miscarriage of justice, alone could be said to be erroneous or perverse, warranting correction under Section 20 of the Act. 5. It is settled that subletting being a clandestine arrangement of the tenant, it may not be possible for the landlord to 6 R.C.Rev.No.2 of 2018 give documentary evidence to prove the same. All that is expected in a case of sublease from the landlord is to establish a _prima facie_ case that the tenant has parted with possession of the premises. Coming to the facts of the case on hand, there is no dispute as to the tenancy arrangement. The tenant also does not dispute the fact that the premises was let out to him for conducting footwear business and that he is not conducting the said business anymore in the tenanted premises. As noted, the contention of the tenant is only that he has not sublet the premises to anyone and that respondents 2 and 3 are persons engaged by him as sales promoters in connection with the business of electronic goods carried on by him in the premises. It is admitted by the tenant that he has not taken licence from the local authority for conducting business of electronic goods. He has also not produced any document to show that he is conducting business of electronic goods in the premises. Even though he contended that respondents 2 and 3 are sales promoters engaged by him, he has not produced any document to prove the same. That apart, the Advocate Commissioner appointed in the proceedings has stated in Ext.C1 report that she found that the premises has been refurbished recently and a new signboard 7 R.C.Rev.No.2 of 2018 displaying the name of the shop as 'U.A.E. Electronics and Watches' has been placed. She has also reported that the premises was found to be used for conducting business of electronic goods. It is also stated by the Advocate Commissioner in her report that two persons who were available in the premises at the time of her inspection informed her that they are workers of respondents 2 and 3. It is in light of the aforesaid facts that the Appellate Authority came to the conclusion that the landlady has established _prima facie_ that possession of the tenanted premises has been parted with by the tenant, and there is no _contra_ evidence. The conclusion aforesaid arrived at by the Appellate Authority is purely based on the facts disclosed and the said conclusion cannot be said to be erroneous or perverse, warranting correction by this Court under Section 20 of the Act. 6. The learned counsel for the tenant contended that the Appellate Authority came to the conclusion that there is sublease solely based on the statement made by the Advocate Commissioner in her report that two persons found in the tenanted premises at the time of inspection were workers engaged by respondents 2 and 3. According to the learned counsel, an Advocate Commissioner 8 R.C.Rev.No.2 of 2018 appointed for local inspection is not expected to conduct an enquiry in the nature of one conducted by her to make such a statement and the Appellate Authority, in the circumstances, ought not have placed reliance on the same to arrive at the conclusion that the tenant has parted with possession of the tenanted premises. We are unable to agree. The Advocate Commissioner has only stated in her report that, at the time of inspection, there were only two persons present in the premises and they informed her that they are workers engaged by respondents 2 and 3. There is no impediment in law for the Appellate Authority in placing reliance on the said statement of the Advocate Commissioner, especially when she was not discredited on that aspect in the cross-examination. The only suggestion put to the Advocate Commissioner by the counsel for the tenant at the time of cross-examination was that the persons who were present in the premises at the time of inspection were persons set up by the landlady herself. The said suggestion cuts the very root of the case attempted to be made out by the tenant, as, if the said case is accepted, there is no explanation as to who opened the premises for the Advocate Commissioner to inspect the premises. 7. Yet another argument advanced by the learned 9 R.C.Rev.No.2 of 2018 counsel for the tenant is that it has been admitted by the landlady in her complaint preferred before the local authority that the tenant himself is conducting the business of electronic goods in the premises, and the landlady cannot, therefore, be heard to contend that respondents 2 and 3 are conducting business of electronic goods in the premises. It is seen that in one of the complaints lodged by the landlady before the local authority, it has been stated that the tenant is conducting business of electronic goods in the premises which was originally let out by her to the tenant for conducting footwear business. Merely for the reason that such a complaint has been filed, the landlady is not precluded from contending otherwise with supporting materials. We do not also find any merit in the said argument of the learned counsel. In the circumstances, the revision petition is dismissed. However, as there was a request made by the learned counsel for the tenant alternatively for time to surrender vacant possession of the premises, in the event this Court is not accepting the contentions put forward by him, we deem it appropriate to grant six months' time from today to the tenant to surrender vacant possession of the premises on the peculiar facts of this case, on 10 R.C.Rev.No.2 of 2018 condition that he shall file an unconditional undertaking before the Rent Control Court within two weeks from the date of receipt of a copy of this order to surrender vacant possession of the premises within six months and also that he shall pay the arrears of rent, if any, within the aforesaid time limit and continue to pay the monthly rent on or before the tenth day of every succeeding month till he vacates the premises. Ordered accordingly. **Sd/-** **P.B.SURESH KUMAR, JUDGE.** **Sd/-** **C.S.SUDHA, JUDGE.** Mn