High Court Kerala High Court

Shabandri Real Estate Limited vs S.K.Syed Ummar Sahib on 4 February, 2011

Kerala High Court
Shabandri Real Estate Limited vs S.K.Syed Ummar Sahib on 4 February, 2011
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RCRev..No. 427 of 2005()


1. SHABANDRI REAL ESTATE LIMITED, A
                      ...  Petitioner

                        Vs



1. S.K.SYED UMMAR SAHIB, S/O.LATE S.K.SYED
                       ...       Respondent

2. S.K.SYED HUSSAIN, S/O.S.K.HUSSAIN

                For Petitioner  :SRI.C.P.MOHAMMED NIAS

                For Respondent  :SRI.K.M.FIROZ

The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice N.K.BALAKRISHNAN

 Dated :04/02/2011

 O R D E R
                 PIUS C. KURIAKOSE &
                N.K.BALAKRISHNAN, JJ.
                ----------------------------------
                  R.C.R. No.427 of 2005
                  ------------------------------
         Dated this the 4th day of February 2011


                          O R D E R

Pius C. Kuriakose, J.

The landlord, a company, is in revision challenging the

judgment of the Rent Control Appellate Authority

dismissing the rent control petition after setting aside the

order of eviction which had been passed by the Rent

Control Court on the ground of sub-letting/transfer under

Section 11(4)(i) of Act 2 of 1965. The landlord had sought

eviction on the ground under Section 11(4)(i) and also

under Section 11(4)(ii). As the ground under Section 11

(4)(ii) does not survive in this revision we need consider

only the right of the landlord to obtain eviction on the

ground of sub-letting. In the RCP, the tenants, R1 and R2

alone were made parties. The names of the alleged sub-

R.C.R. No.427 of 2005

-: 2 :-

lessees or transferees were not disclosed even. The

allegation in the RCP in the context of the ground under

Section 11(4)(i) was that contrary to the terms of the

agreement, the tenants have sub-let portions of the building

to strangers after receiving huge amount by way of

premium and on a higher rent. The further allegations are

that the hotel business to conduct which the building had

been let out has been closed down and at the time of the

filing of the RCP new business under the name and style

Lucky Collections and Lucky Pardah were being conducted

by totally strangers. There is further allegation that the

above sub-lease was not terminated despite a notice issued

under the proviso to Section 11(4)(i). The 2nd respondent

one of the tenants did not contest. The 1st respondent alone

filed objections completely denying the allegations

regarding sub-lease/transfer. However, in Ext.A5 reply

which he had sent to the statutory notice received by him

he had stated that the businesses which are being

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-: 3 :-

conducted (Lucky Collections and Lucky Pardah) are a joint

ventures.

2. The Rent Control Court on evaluating the

evidence adduced by the parties came to the conclusion

that the eviction ground under Section 11(4)(i) stood

established. Such a conclusion was arrived at by the

learned Rent Control Court mainly on the basis of some

documents which indicated that a new business by name

Stylo Footwear is being conducted in a portion of the

petition schedule building by strangers. The learned

Appellate Authority under the impugned judgment reversed

the findings of the Rent Control Court in the context of the

ground under Section 11(4)(i). According to the learned

Appellate Authority the landlord has not discharged his

burden of showing that the premises have been sub-let and

that “exclusive possession” has been transferred by the

tenants to strangers. In that view of the matter the learned

Appellate Authority set aside the order of eviction and

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-: 4 :-

dismissed the RCP.

3. In this revision under Section 20 various grounds

are raised assailing the judgment of the Appellate Authority

and Sri.C.P.Muhammed Nias, the learned counsel for the

revision petitioner addressed very strenuous arguments on

all those grounds. All the submissions of Mr.Niyas were

resisted by Mr.K.M.Firoz, the learned counsel for the

respondent. As the findings entered by the statutory

authorities are divergent, we have made a survey of the

entire evidence on record.

4. On a reading of the judgment of the Appellate

Authority, we find that one of the reasons which weighed

with the learned Appellate Authority for taking a decision

against landlord’s is that the landlord did not produce a

particular document written by the 2nd respondent in the

RCP to Batkal Muslim Juma Ath of which he is a member, in

which allegedly it was stated that the petition schedule

building which had been taken on lease by him and his

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-: 5 :-

brother (the 1st respondent in the RCP) was sub-let to two

textile merchants receiving substantial amounts as advance

cash amount and daily rent of Rs.1700/- though he claimed

to be possessing the same. It was submitted by Mr.Nias

that the landlords filed an application before the Rent

Control Court for summoning the production of the original

of that letter from the Juma Ath. But the Secretary of the

Juma Ath on receiving summons filed a statement to the

effect that the original of the letter is not traceable.

Mr.Nias submitted that his client got as a copy of that letter

(translation of the original version in Urudu). He placed the

same for our perusal.

5. When the contention of Mr.Firoz was drawn by us

to the evident situation that a footwear business by name

Stylo Footwear is being conducted in a portion of the

ground floor of the petition schedule building which is a

double storeyed building, the learned counsel submitted

that an order of eviction cannot be passed on the basis of

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-: 6 :-

alleged transfer or sub-lease to M/s.Stylo Footwear as such

a cause of action does not find a place in the statutory

intimation notice issued under the proviso to Section 11

(4)(i) or in the RCP. The alleged sub-lease to the

conductors of Stylo Footwear if at all can be a fresh cause

of action and cannot be a ground for ordering of eviction in

the present proceedings, according to Mr.Firoz.

6. It is trite and that rules of pleadings are not to be

meticulously adhered to in rent control proceedings. The

question to be considered is whether for want of pleadings,

any prejudice has been caused to the opposite party. On

going through the rent control petition, what we find is that

the landlord has alleged that possession of a portion of the

petition schedule building that possession has been parted

with by the tenant in favour of strangers. Section 21 of Act

2 of 1965 provides that any order passed against a tenant

will be binding on the sub-tenant and that sub-tenant need

not be made a party to the rent control proceedings in the

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-: 7 :-

absence of any allegation for the tenant that there is

collusion. In the nature of the pleadings raised in the

present case the non impleadment of the alleged sub-lease

cannot be fatal to the rent control proceedings.

7. On a reading of the judgment of the Appellate

Authority, it appears to us that the learned Appellate

Authority is of the opinion that in order that eviction ground

under Section 11(4)(i) is established the landlord has the

burden to prove that there is sub-lease (the existence of

landlord-tenant relationship) between the tenant and the

alleged sub-tenant, apart from the obligation to prove that

exclusive possession of the building has been transferred by

the tenant unauthorisedly to the alleged sub-tenant. A

careful reading of Section 11(4)(i) will show that in order

that the ground of eviction under that provision is

established it is sufficient that either the existence of a

landlord-tenant relationship between the tenant and sub-

tenant is established or unauthorised transfer of either the

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-: 8 :-

entire building or a portion of a building is established. One

of the circumstances relied on by the learned Rent Control

Court for its conclusion that Stylo Footwear is being

conducted in a portion of the building by strangers, was

Ext.A11 letter, paper containing the telephone numbers of

total strangers. The learned Appellate Authority also

noticed Ext.A11. According to that Authority it will not be

safe to conclude on the basis of Ext.A11 alone that

strangers are in possession.

8. Having made a thorough reappraisal of the

evidence and the pleadings we feel that the question

whether the eviction order is liable to be passed against the

respondent in this case under Section 11(4)(i) requires to be

considered afresh by the Rent Control Court. 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

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-: 9 :-

ground for eviction order under Section 11(4)(i) as the

respondent did not have a case that it is with authorisation

from the landlord that Stylo Footwear is being conducted.

As rightly argued by Mr.Firoz the conduct of Stylo Footwear

in a portion of the building is not averred in the rent control

proceedings. We feel that as the matter is going back to the

Rent Control Court the landlord should be permitted to

amend their pleadings. We are therefore inclined to remit

the matter back to the Rent Control Court giving

opportunity to the landlord to amend the pleadings and

giving opportunity to both sides to adduce further evidence

including production of the copy of the letter sent by 2nd

respondent in the RCP to the Batkal Juma Ath.

9. We notice another important aspect of the matter.

The building having a plinth area of 3000 sq.feet on

S.M.Street at Calicut is fetching to the landlord only a

paltry rent of Rs.2,000/- per mensem. According to us if the

building is let out today, the same will fetch several times

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-: 10 :-

the above amount. If the allegation of sub-lease or transfer

is true, the tenant must be receiving substantial amounts

from the alleged sub-lease. We are therefore, inclined to

refix the rent with effect from 1.3.2011 at Rs.10,000/- per

mensem. Such refixation will be tentative and it will open

to either party to move to Rent Control Court for regular

fixation of fair rent under Section 5. Till the fair rent is

fixed, respondents shall pay rent at the rate of Rs.10,000/-

per mensem. The result of the above discussion is as

follows:-

The judgment of the Rent Control Appellate

Authority and order of the Rent Control Court are set aside

to the extent the same pertains to eviction on the ground of

sub-letting under Section 11(4)(i). The RCP is remitted to

the Rent Control Court. That Court is directed to permit the

landlord to amend the pleadings by incorporating specific

averments regarding the nature of the sub-lease or transfer.

If pleadings are amended by the landlords, tenants should

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-: 11 :-

be given opportunity to raise counter pleadings. Both sides

should be permitted to adduce further evidence. It is open

to the landlord to produce a copy of the letter issued by the

2nd respondent to the Batkal Juma Ath as an item of

evidence on their side. The learned Rent Control Court will

take a fresh decision on the basis of the evidence on record

and the evidence which may come on record at the earliest.

As the RCP is of the year 1999, the learned Rent Control

Court is directed to expedite matters and ensure that fresh

orders are passed atleast within the statutory time frame of

four months. Parties will enter appearance before the Rent

Control Court on 28.2.2011.

PIUS C. KURIAKOSE,
JUDGE.

N.K.BALAKRISHNAN,
JUDGE.

Jvt