High Court Kerala High Court

Manathanath Janu Amma vs Vanathu Poyil Kunhiraman on 26 July, 2010

Kerala High Court
Manathanath Janu Amma vs Vanathu Poyil Kunhiraman on 26 July, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP.No. 1035 of 2003()



1. MANATHANATH JANU AMMA
                      ...  Petitioner

                        Vs

1. VANATHU POYIL KUNHIRAMAN
                       ...       Respondent

                For Petitioner  :SRI.C.P.MOHAMMED NIAS

                For Respondent  :SRI.MOHANAN V.T.K.

The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :26/07/2010

 O R D E R
        PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.
                   ----------------------------------

                    C.R.P. No.1035 of 2003

                   ----------------------------------
               Dated this the 26th day of July, 2010


                             O R D E R

—————

Pius C.Kuriakose,J.

The landlady is the revision petitioner. She is

aggrieved by the judgment of the Appellate Authority

dismissing the application filed by her on the ground of

subletting under Section 11(4)(i) after reversing an order of

eviction which had been passed in her favour by the Rent

Control Court. In fact the landlady had invoked the ground of

arrears of rent also. But it is submitted before us that, that

ground does not any longer survive since the entire arrears

alleged in the Rent Control Petition was discharged during

the pendency of the Rent Control Petition.

2. The allegation of the landlady in the context of the

ground under Section 11(4)(i) was that the first respondent in

the Rent Control Petition was the tenant on the basis of

Ext.A1 rent chit and that he has unauthorisedly sublet or

transferred the building to the second respondent in the Rent

Control Petition. The name of the first respondent in the Rent

Control Petition is Mr.Kunhiraman and that of the second

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respondent in the Rent Control Petition, who is the alleged

sub-lessee, is Mr.Sivadasan. Mr.Sivadasan remained ex-parte

before the Rent Control Court. The contention of

Sri.Kunhiraman, the tenant, was that there is no sub-lease

that he continued and retained possession of the building;

that Sivadasan was his employee till 1992 and thereafter he

and Sivadasan fell apart. Kunhiraman’s explanation

regarding Ext.A5 agreement which was relied on by the

landlady to prove the case of the sub-lease was that the stamp

paper on which Ext.A5 agreement is written and also the plain

paper on which Kunhiraman’s signature appears was kept in

the schedule premises to be given to Canara Bank from who

there was a proposal to avail a loan and that Sivadasan took

away the stamp paper as well as the blank signed paper and

has created Ext.A5 in collusion with the landlady. The Rent

Control Court enquired into the matter and at trial the

evidence consisted of Ext.A1 the rent chit governing the

tenancy, Exts.A2 and A3 copies of the lawyer notice sent to

the respondents in the RCP, Exts.A4 and A4(a) postal

acknowledgment cards signed by the respondents in the RCP

and Ext.A5 agreement between first respondent and second

respondent in the RCP, Ext.A6 receipt issued by the first

CRP.1035/03 3

respondent in the RCP in favour of the second respondent

against payment of rent and the oral evidence of PWs 1 and 2

on the side of the landlady. PW2 significantly was none other

than the alleged sub-lessee, who remained ex-parte in the

case. On the side of the first respondent the evidence

consisted of Ext.B1 letter sent by the alleged sub-lessee to

Mr.Prabhakaran, RW1, son of first respondent. Exts.B2 and

B3 were documents which would show that in October 1995

the local branch of the Canara Bank had advanced a loan to

Sri.V.P.Dinesan, brother of RW1. The Rent Control Court, on

making a thorough analysis of the entire evidence, came to

the conclusion that the first respondent had unauthorisedly

sublet or transferred the building in question to the second

respondent, and that the first respondent was totally

unsuccessful in proving that after the date of Ext.A5 the jural

relationship between the first respondent and second

respondent was continuing as that of employer and employee.

Accordingly the Rent Control Court ordered eviction on the

ground under Section 11(4)(i).

3. The Appellate Authority considered an appeal

preferred by the first respondent, made a re-appraisal of the

evidence and would reverse the finding of the Rent Control

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Court. The Appellate Authority also practically agreed with

the finding of the Rent Control Court that Ext.A5 agreement

shows an apparent transfer or sub-lease of the building by the

first respondent to the second respondent. But, according to

that authority, in order that eviction ground under Section 11

(4)(i) is established, it is necessary that the landlady proves

that the sub-lease or unauthorised transfer is in existence at

the time of issuance of statutory notice, Ext.A3. The Appellate

Authority has opined that if as a matter of fact, it was the

second respondent in the Rent Control Petition who was in

possession of the building at the time when the Rent Control

Petition was instituted and that the landlady could have taken

out a commission to prove the same. The authority also would

find fault with the landlady for not having examined the

neighbouring shopkeepers for proving that it is the alleged

sub-tenant who is in physical possession, and not the tenant.

In this context the Appellate Authority would highlight certain

statements in PW1’s evidence to the effect that she has seen

the children of Kunhiraman, the first respondent, inside the

petition schedule building. The Appellate Authority would

also observe that possibilities of the second respondent

colluding with the landlady for defeating the interests of his

CRP.1035/03 5

former employer cannot be ruled out.

4. In this revision under Section 20 the landlady has

raised various grounds assailing the judgment of the

Appellate Authority. It is urged that the finding of the

Appellate Authority that there is no objectionable sub-lease

and that the sub-lease, at any rate, was not in existence at the

time when the Rent Control Petition was instituted, is illegal,

irregular and improper. It is urged that re-appreciation of the

entire evidence by the Appellate Authority was in an

erroneous fashion and this resulted in prejudice to the

landlady.

5. Sri.C.P.Mohammed Nias, learned counsel for the

revision petitioner addressed us very elaborately on the

various grounds raised in the memorandum of appeal.

Mr.Nias submitted that the explanation of the first respondent

regarding Ext.A5 cannot stand judicial scrutiny even for a

moment. It is not disputed that Ext.A5 contains signature of

the first respondent in the Rent Control Petition. Ext.A6 is

also admittedly a receipt issued by the first respondent in

favour of the second respondent. If the relationship between

the first respondent and second respondent was that of

employer and employee, there cannot be any occasion for

CRP.1035/03 6

second respondent paying rent to first respondent. The

probability of second respondent paying hire charges of the

sewing machine is also remote since it is for the employer to

provide the employee with sewing machine. The approach of

the learned Appellate Authority, according to the learned

counsel, was too technical. The statutory authorities under

the Rent Control Act who are expected to be governed by the

principles of justice in good conscience are not expected to

show this much of indulgence towards subletting tenants, so

submitted the learned counsel.

6. Sri.V.T.K.Mohanan, learned counsel for the first

respondent tenant would resist all the submissions of

Mr.Nias. He submitted that the unusual circumstance of the

subtenant giving evidence as a witness on the side of the

landlord and his supplying the details of Ext.A5 document to

the landlord even before the landlord issues statutory

intimation notice Ext.A3, demonstrates to the very hilt that

there is collusion between the landlord and PW2. Mr.

Mohanan submitted that PW2’s testimony should not have

been attached any credit worthiness in the circumstance of

this case. According to Mr.Mohanan, PW2 himself conceded

in evidence that only for a period of four months after Ext.A5

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was executed, he continued in the building. Mr.Mohanan

submitted that the genuine case of the tenant was that on

account of a difference of opinion that cropped up between

the tenant and the subtenant, the subtenant was sent away

from the building in July 2007 itself, which is actually prior to

the issuance of Ext.A3. Sri.Mohanan further submitted that

the appreciation of the evidence on record in the case by the

Rent Control Court was highly improper and the Appellate

Authority being the final fact finding authority under the

statutory scheme only correctly appreciated the evidence and

arrived at correct findings. Mr. Mohanan reminded us of the

limits of jurisdiction under Section 20 and submitted that in

this jurisdiction this court is not expected to make a

reappraisal of the evidence.

7. We have considered the submissions addressed at

the bar. We have gone through the pleadings raised by the

parties and we have made a re-appraisal of the evidence on

record particularly of those items of evidence to which our

attention was drawn by the learned counsel in their

submissions. Ext.A5, in our opinion, is a very crucial

document. It is dated 19th May, 1995. It is written on stamp

paper purchased in the name of Sri.Kunhiraman the first

CRP.1035/03 8

respondent, and on three appended sheets. The parties to

Ext.A5 are the respondents in the Rent Control Petition. The

first party is Kunhiraman the first respondent, and the

genuineness of his signature in Ext.A5 is admitted by RW1,

the first respondent’s son. Eaxt.A6 is another document. This

is a receipt against payment of rent (hmSI) from the second

respondent by the first respondent. The explanation of RW1

was that hmSI referred to Ext.A6 is not hmSI for building, but

it is hmSI for sewing machine. Ext.B1 is one document which

was relied on much by the first respondent before the

authorities below. Ext.B1 is a letter written by the second

respondent in the RCP to RW1 the son of the first respondent.

Ext.B1 certainly proves that at the time when Ext.B1 is

written there was employer-employee relationship between

the first respondent and the second respondent in the RCP.

Section 114(d) of the Evidence Act provides that, a thing or

state of things which has been shown to be in existence within

a period shorter than that within which such things or state of

things usually cease to exist, is still in existence. We will, for

the purpose of this case, assume that Section 114(d) of the

Evidence Act is attracted in this case which means that unless

CRP.1035/03 9

contra evidence is adduced by the tenant or the landlady it

will have to be presumed that the employer-employee

relationship between the first respondent and the second

respondent continues. But, we find that in Ext.A5 the

landlady has produced convincing contra evidence. It is

extremely difficult for us to accept the explanation of first

respondent that the second respondent stole the stamp paper

and the signed appended sheet presently forming part of

Ext.A5 from the shop in question and has fabricated Ext.A5 in

collusion with the landlady. We are of the view that it is only

for the purpose of giving surface credibility to the above

explanation that the first respondent has introduced Ext.B3

and B4 into the evidence. Exts.B3 and B4 at best only shows

that the brother of RW1 availed a loan from Canara Bank

several months after Ext.A5 was apparently executed between

respondents 1 and 2. We also see from the evidence that

second respondent at the time when he was working as

employee under first respondent was abstaining from duty off

and on. It appears to us that second respondent was a very

talented tailor and that first respondent was finding it difficult

to successfully conduct his business without the help of first

respondent as a result of which second respondent had

CRP.1035/03 10

acquired considerable bargaining power with first

respondent. May be second respondent exploited that

bargaining power and could ensure that the first respondent

agrees to have the arrangement under Ext.A5 with second

respondent under which first respondent is gaining to a

certain extent as he is getting much more than what he is

liable to pay as rent to the landlady. For coming to this

conclusion we take into account the probative value of Ext.A6.

Ext.A6 is a receipt against payment of rent. We cannot even

for a moment countenance the explanation of the first

respondent that Ext.A6 is a receipt against payment of hire

charges of sewing machine. In all probability Ext.A6 is a

receipt against payment of rent due from second respondent

to first respondent by virtue of Ext.A5.

8. The learned Appellate Authority has observed that

even if Ext.A5 is accepted as a genuine document, then also

RCP should fail for want of evidence regarding continuance of

the unauthorised sub-lease or transfer at the time of

institution of RCP. We have carefully scanned PW1’s oral

evidence. It is seen that the suggestions made in cross-

examination to PW1 are to the effect that the second

respondent continues to be in the petition schedule building

CRP.1035/03 11

(of course, the suggestion is of continuing as an employee).

When the physical presence of the second respondent is

conceded by the cross-examiner, then in the teeth of Ext.A5 it

will have to be held that his physical presence is not in his

capacity as an employee but is by virtue of Ext.A5. The

approach of the learned Appellate Authority was too technical

and the same will not receive acceptance at our hands. When

physical presence of the alleged sub-tenant is admitted by the

tenant, then the jural relationship between tenant and sub-

tenant being a matter which is especially within the

knowledge of tenant and the sub-tenant, the burden will shift

to the tenant to show that the same is that of an employer and

employee. The tenant could have discharged that burden by

producing convincing evidence or even by examining the

neighbours. The Appellate Authority was not justified in

placing all the blame on the landlady for not examining the

neighbours.

9. Result of the above discussion is that the finding of

the Appellate Authority regarding the jural relationship

between the first respondent and the second respondent is

liable to be vacated. We vacate that finding and restore the

finding of the Rent Control Court. As a consequence, order of

CRP.1035/03 12

eviction under Section 11(4)(i) will stand passed against both

the respondents. The CRP is allowed however without any

order as to costs.

10. Sri.V.T.K.Mohanan after we pronounced this order

requested that at least two years time be granted to the

additional respondents 3 to 8 for surrendering the premises

as it will be very difficult for him to identify another building

for shifting the business. The above request is opposed very

stiffly by Mr.Nias who submitted that it will not be equitable

to grant time to a tenant who has sublet. Ordinarily, we

would not have granted time to a tenant who is liable to be

evicted on the ground of subletting. But we feel that on the

totality of the facts and circumstances which attendant on this

case, there is justification for giving an unusually long period

of time to the additional respondents 3 to 8 to surrender the

premises. We therefore direct the execution court not to

order and effect delivery of the building till 1-8-2011,

provided the following conditions are satisfied by the

additional respondents 3 to 8.

11. The additional respondents shall file an affidavit

before the execution court or the rent control court, as the

case may be, within one month from today undertaking to

CRP.1035/03 13

give peaceful surrender of the building in question to the

revision petitioner landlord on or before 1-8-2011 and

undertaking further that arrears of rent if any, due as on

today will be discharged and that occupational charges at the

rate of Rs.110/- per mensem will also be paid to the revision

petitioner without fail as and when the same falls due. It is

made clear that the respondents will be eligible for benefit of

time as granted above is only if the additional respondents

file the affidavit on time.

PIUS C.KURIAKOSE, JUDGE.

C.K.ABDUL REHIM, JUDGE.

okb/ksv