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.
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C.R.P. No.1035 of 2003
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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
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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
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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
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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
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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
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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
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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
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(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
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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
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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