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.
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R.C.R. No.427 of 2005
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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-
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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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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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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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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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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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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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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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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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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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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