IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 3270 of 2001(I)
1. M.S.VASUDEV
... Petitioner
Vs
1. K.R.NARAYANAN
... Respondent
For Petitioner :SRI.M.S.UNNIKRISHNAN
For Respondent :SRI.M.K.DILEEP KUMAR
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :30/03/2009
O R D E R
PIUS.C.KURIAKOSE & M.C.HARI RANI, JJ.
------------------------
C.R.P.No.3270 OF 2001
------------------------
Dated this the 30th day of March, 2009
ORDER
Pius C.Kuriakose, J.
The second respondent in the rent control petition, the
alleged sub tenant is in revision under Section 20, being
aggrieved by the orders of the Rent Control Court and the
Appellate Authority passed against him and also against the first
respondent in the rent control petition on the grounds under
Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease & Rent
Control)Act,1965 (Act 2 of 1965) hereinafter referred to ‘the Act.
The landlord had invoked the ground under clause (i) of sub
section 4 of Section 11 – sub letting also. The Rent Control
Court, however did not grant eviction order under Section 11 (4)
(i) finding that the transfer of premises in favour of the revision
petitioner,second respondent, by the tenant is not an
objectionable sub lease or transfer. To hold so, that court took
into account the circumstance that the tenant and the alleged sub
tenant are direct brothers and that the alleged sub tenant has
CRP.3270/2001 -2-
been in occupation of the building for quite a long period of time.
The order of the Rent Control Court declining eviction on the
ground under section 11(4)(i) has become final. In fact the land
lord did not challenge that order before the Rent Control
Appellate Authority and the appeal was preferred by the tenant
only, against the order of eviction passed under section 11 (2)
(b) and Section 11 (3) of the Act. We, therefore, in this revision
need be concerned only, with the order of eviction passed under
Section 11 (2) (b) and 11 (3).
2. The allegation of the landlord in the context of the
ground under Section 11 (2) (b) was that the contract rent is
Rs.200/- per month on the basis of Ext.A1 lease deed dated
14/7/1995 and that the rent at the rates mentioned therein has
not been paid at all by the tenant in spite of statutory demand
notice issued under Section 11 (2)(b). Even though
Sri.M.S.Unnikrishnan, learned counsel for the revision petitioner ,
the second respondent in the rent control petition would assail
the finding of the Rent Control Court regarding the rate of rent
and also regarding the quantum of arrears, inter alia, on the
CRP.3270/2001 -3-
reason that the revision petitioner is not a party to Ext.A1 lease
deed, we are not inclined to interfere with the concurrent findings
of the courts below entered in the context of Section 11(2)(b) of
the Act. We also take into account the circumstance that the
first entry of the revision petitioner into the schedule building was
on the strength of the permission granted by his brother, the first
respondent in the R.C.P. and the further circumstance that the
petition schedule building is situated by the side of the State
Highway at Kolazhi Junction, an important junction situated not
far away from the Thrissur Municipal Corporation and at any rate
the sum of Rs.200/- per mensum is below the prevailing market
rate for similar buildings in the said locality. We also take into
account the circumstance that it is not an absolute order of
eviction which is passed by the Rent Control Court under Section
11(2)(b) of the Act. Any eviction order passed under Section 11
(2)(b) of the Act is a provisional one which is liable to be vacated
by the Rent Control Court. Once the tenant deposits the
quantified arrears and moves under Section 11(2)(c) of the Act.
We, therefore, confirm the order of eviction passed under Section
CRP.3270/2001 -4-
11(2)(b) of the Act and grant one more month’s time from today
to the revision petitioner to get the order of eviction vacated by
depositing the requisite amounts.
3. We have gone through the findings entered by the Rent
Control Court and the Appellate Authority in the context of the
ground under Sub-section 3 of Section 11 of the Act. The need
projected by the landlord was that the building is required for
occupation by his dependent son, who was examined as PW2, so
that he could carry on business in electrical goods. It came on
record that PW2 had passed ITI and had a certificate in electrical
wiring. It also became evident that he, who was previously
employed in a Gulf country, has come back for good and
presently without any employment. The defence of the revision
petitioner that the father-in-law of PW2 is having extensive
immovable properties and that PW2 came home back for the
purpose of looking after those properties was rightly repelled by
the authorities below. The evidence is that the total extent of
property belonged to the father-in-law is just 1 1/2acres of
garden land where some coconut trees and arecanut trees are
CRP.3270/2001 -5-
standing. According to us, there is no infirmity about the finding
of the Rent Control Court and the Appellate Authority that the
need projected by the landlord is a bona fide one. The question
whether the R.C.P.is liable to fail on account of the second
proviso to Section 11(3) of the Act will naturally depend on
answer to the question as to who is the tenant. The finding of
the authorities below concurrently is that the tenant of the
building is the first respondent in the R.C.P. Of course, the Rent
Control Court declined the order of eviction under Section 11(4)
(i) of the Act taking the view that the sub-lease or transfer in
favour of the second respondent is not an objectionable one and
the same has been accepted by the landlord. Nevertheless the
finding of the Rent Control Court was that the revision petitioner
is only a sub-tenant. The Appellate Authority also concluded that
the revision petitioner is a sub-tenant. Therefore, both the
authorities did not seriously go into the question whether the
second respondent in the R.C.P.(revision petitioner herein) is
entitled for the protection of the second proviso to Section 11(3)
of the Act. Since the question whether the revision petitioner is
CRP.3270/2001 -6-
entitled to the protection of the second proviso to sub-section 3
of Section 11 of the Act is closely connected with the status of
the revision petitioner in the building, we find it necessary to
examine the case of the parties regarding the ground of sub-
letting once again, though the order declining eviction under
Section 11(4)(i) of the Act has attained finality.
4. Ext.B10 is a consent letter dated 30-5-1983 issued by
the landlord to the local Engineer of the Kerala State Electricity
Board wherein the landlord admits that the revision petitioner is
carrying on trade in the schedule building and virtually expresses
his consent in the matter. Exts.B7, B8 and B9 are certified copies
of property tax assessment registers maintained by the local
authority, Kolazhi Panchayath, in respect of the building in
question in relation to a long period from 1983 to 1994 which
takes in the period covered by the date of issuance of the
statutory intimation notice under Section 11(4)(i) of the Act. In
all these documents, it is recorded that the revision petitioner is
the person in possession of the petition schedule building. In
one of the documents, viz. Ext.B8 pertaining to the period from
CRP.3270/2001 -7-
1988-89 to 1992-93, it is clearly recorded that the revision
petitioner’s status in the building is as tenant. Exts.B4 to B6
receipt books, according to us, are receipt books kept in the
usual course of business by the revision petitioner and all those
books will reveal that the landlord has received rent from the
revision petitioner recognizing the revision petitioner as the
tenant of the building. Receipt books show that the amounts are
received from Vasu (revision petitioner) towards the rent in
respect of the building in question. This being the position, we
are of the view that the evidence on record will justify a
conclusion not only that the transfer of the building by the first
respondent in the R.C.P to the second respondent which to
begin with was unauthorised was condoned by the landlord but
also that the landlord has recognized the revision petitioner as his
own tenant by acquiescence. It must be noted particularly that
Exts.B4, B5 and B6 contained the signatures of the landlord. It
should also be noted that documents, Exts.B7, B8 and B9 are
documents enjoying their strong presumptions under Section 26
of the Rent Control Act regarding the correctness of the entries
CRP.3270/2001 -8-
contained therein. In the teeth of all these documents the
conclusion is irresistible that the landlord has recognized the
revision petitioner as his own tenant.
5. On an evaluation of the evidence, we find that both the
Rent Control Court and the Appellate Authority have proceeded to
consider the question of tenant’s eligibility for protection under
the second proviso to Section 11(3) of the Act on the premise
that the tenant of the building is the first respondent in the R.C.P.
Of course, we notice that the Rent Control Court has observed
that the revision petitioner/2nd respondent in the R.C.P.has
admitted in his statement of objections that other buildings are
available in the locality. The above portion of the pleadings of
the revision petitioner was read over to us by Advocate Mr.
M.K.Dileepkumar. But we find that the landlord was denying the
averment that the buildings are available in the locality for the
landlord to provide his son. We are not prepared to decide the
question of the revision petitioner’s eligibility to the protection of
the second proviso on the basis of the above apparent admission.
The question whether the second respondent/ revision petitioner
CRP.3270/2001 -9-
is entitled for protection of the second proviso to Section 11(3)
of the Act, according to us, it should be considered afresh by the
Rent Control Appellate Authority. Section 20A of Act 1965 will
enable this Court to remand appeals to the Rent Control
Appellate Authority. We notice from provisions such as Sections
23(1), 18(3) of the Rent Control Act and Rule 16(2) of the Kerala
Buildings (Lease & Rent Control) Act that the Appellate Authority
has got power to conduct enquiries as the Rent Control Court
has. We feel that considering the circumstance that the
R.C.P.was filed way back in 1996, it is necessary in the interest of
justice that the issue is remanded to the Rent Control Appellate
Authority and not to the Rent Control Court.
6. The result of the above discussion is, therefore, as
follows:
1. The revision petition is allowed to the limited extent of
setting aside the order of eviction passed under Sub-Section 3 of
Section 11 of the Act to the extent it pertains to the finding of
the courts below regarding the eligibility for the protection of the
second proviso to Section 11(3)) of the Act.
CRP.3270/2001 -10-
2. The finding that the landlord has a bona fide need under
Section 11(3) of the Act of the schedule premises of occupation
by his son,PW2, is confirmed.
3. The finding of the Rent Control Court and the Appellate
Authority is modified and it is held that the revision petitioner
has acquired the status of a tenant by acquiescence on the part
of the landlord. As a consequence the R.C.P.to the extent it is
filed under Section 11(3) of the Act is remanded to the Rent
Control Appellate Authority to decide the limited question
whether the revision petitioner is entitled for the protection of the
second proviso to Section 11(3) of the Act. Since oral evidence is
already on record, both sides need be permitted by the court
below to adduce documentary evidence regarding the revision
petitioner’s eligibility for the protection to Section 11(3) of the
Act. The enquiry as directed above will be completed by the Rent
Control Appellate Authority within two months of the court
reopening after mid-summer holidays and fresh decision will be
taken by that Authority regarding the revision petitioner’s
eligibility for eviction under Section 11(3) of the Act immediately
CRP.3270/2001 -11-
on completing the enquiry.The order of eviction passed against
the first respondent under Section 11(2)(b) of the Act is
extended to the second respondent/revision petitioner also and
the revision petitioner is given one month’s time from today for
vacating that order under Section 11(2)(c) of the Act after
making deposits.
The civil revision petition is allowed to the above extent.
But the parties are directed to suffer their respective costs.
PIUS.C.KURIAKOSE,JUDGE
M.C.HARI RANI, JUDGE
dpk/ks.