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Kerala High Court
Nafeesa Thattankandiyil vs Puthiyottil Anitha Kumari on 20 May, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
RCREV. NO. 25 OF 2022
AGAINST THE ORDER DATED 06.10.2021 IN RCA NO.64 OF 2020 OF RENT
CONTROL APPELLATE AUTHORITY/ADDITIONAL DISTRICT JUDGE, VADAKARA
ARISING OUT OF THE ORDER/JUDGMENT DATED 17.03.2020 IN RCP NO.80 OF
2018 OF MUNSIFF COURT, VADAKARA
REVISION PETITIONER/1ST RESPONDENT/1ST RESPONDENT:
NAFEESA THATTANKANDIYIL
AGED 54 YEARS, W/O.POCKER HAJI,
KARUVANCHERIAMSOM, KUNNATHKARADESOM, MUTHUVANA P.O.,
VATAKARATALUK, KOZHIKODE DISTRICT, PIN - 673 533.
BY ADVS.
K.RAKESH ROSHAN
THUSHARA.V
RESPONDENT/APPELLANT AND 2ND RESPONDENT/PETITIONER AND 2ND
RESPONDENT:
1 PUTHIYOTTIL ANITHA KUMARI
AGED 51 YEARS, D/O.NARAYANA PILLAI,
LANDLADY, MEMMUNDAAMSOM, KUTTOTHDESOM, VATAKARA TALUK,
KOZHIKODE DISTRICT, PIN - 673 104.
2 THAZHE NADUKKANDIYIL NISAR
AGED 42 YEARS, S/O.KUNHABDULLA,
CHORODE AMSOM, DESOM P.O.CHORODE, VATAKARA TALUK,
KOZHIKODE DISTRICT - 673 106.
BY ADV AMANTA MATHEW
SRI T KRISHNANUNNI SR ADV
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RCREV. NO. 25 OF 2022
2
JUDGMENT
Amit Rawal, J.
1. The present R.C.Rev. is directed against the judgment of the Appellate Authority dated 06.10.2021 rendered in R.C.A. No.64/2020 whereby the judgment of Rent Controller in R.C.P. No.80/2018 dismissing the rent petition of the 1 st respondent - landlord for seeking eviction of the petitioner-tenant on the ground of subletting, has been reversed.
2. 1st Respondent - landlord instituted a rent petition on 26.09.2018 against the petitioner and respondent No.2 by arraying them as respondent Nos.1 and 2 for seeking eviction from premises described as 20/378 which was let out to the respondent No.1- petitioner on a monthly rent of Rs.1,000/- (Rupees one thousand only) for doing the business of grocery vide Ext.A1 Kaichit. It was alleged that respondent No.1 had parted away the conscious possession of the shop to respondent No.2 who was also inducted as a tenant by the respondent No.1- landlord in the adjacent shop bearing No.20/377 vide kaichit No.467/2015 Ext.A5 dated 09.03.2015.
RCREV. NO. 25 OF 2022 3
3. Prior to the institution of rent petition, Ext.A2 notice dated 08.06.2018 was issued seeking the eviction which was duly replied vide Ext.A4 dated 27.07.2018. All the allegations raised by the 1st respondent - landlord were denied.
4. In the written statement petitioner - tenant as respondent No.1 for the first time coined a different story than the one raised in reply to the legal notice branding the respondent No.2 as his employee. Since the parties were at variance learned Rent Controller framed the following issues:
1. Whether the petitioner is entitled for an eviction under section 11(4)(i) of the Act ?
2. Reliefs and costs ?
5. In support of the case 1 st respondent - landlady examined her husband PW1, PW2 Advocate Commissioner and brought on record following documents:
Petitioners witness:-
PW1. 29.10.2019 : B.Vijayakumar, S/o Balakrishna Pillai.
PW2. 12.11.2019 : Diyadeepthi.C, Advocate Commissioner.
RCREV. NO. 25 OF 2022 4 Petitioners Exhibits:-
A1. 01.11.2008 : Rent Kychit.
A2. 08.06.2018 : Copy of Lawyer Notice sent by Adv. Damodaran Nambiar Thattankiyil Nafeesa.
A2(a) : Postal Receipt.
A3. 26.06.2018 : Postal Acknowledgement Card. A4. 27.07.2018 : Copy of Reply notice send by Adv. P.Divakaran to Adv. P. Damodaran Nambiar.
A5. 09.03.2015 : Kychit No. 467/2015 executed by Thazhe Nadukkandiyil Nisar.
Whereas petitioner-tenant did not step into the witness box but examined one labour officer as RW1 and brought on record following documents B1 to B4 and X1 was third party exhibit:
Respondent Witness:-
RW1. 07.12.2019 : Shyna.U, Asst. Labour Officer. Respondent Exhibits:-
B1. 05.12.2018 : Certificate issue by Office of the Asst. Labour Office.
B2. 17.07.2013 : Duplicate of Registration certificate issued by Office of the Asst. Labour Officer.
B3. 14.03.2018 : Registration Certificate issued by Commissionerate of food and RCREV. NO. 25 OF 2022 5 Safety.
B4. 03.02.2017 : Licence Fee Receipt issued by Vatakara Municipality.
B5. 05.02.2019 : Licence issued by Vatakara Municipality.
Third Party Exhibits:-
X1. 08.11.2018 : Application by Nizar.N.K before the Labour Officer, Vatakara.
6. On analysis of the evidence, ie., the Advocate Commissioner's report and other documents learned Rent Controller dismissed the rent petition purely on the ground of identity of property. Aggrieved of the said order, 1 st respondent - landlord preferred a Rent Control Appeal bearing No.64/2020 which has been allowed.
7. Learned counsel appearing on behalf of the petitioner- tenant-respondent No.1 before the Rent Controller in support of the original petition has raised following prayers:
I. Landlady did not step into the witness box instead her husband PW1 appeared who, to a specific question in the cross examination, admitted that he did not know about the particulars of the property as it was the RCREV. NO. 25 OF 2022 6 landlady who had been dealing and had let out the property vide Ext.A1 and Ext.A5 to respondent No.2. Petitioner - tenant has been prevented to cross examine the landlady and therefore, rent petition was rightly dismissed by the Rent Controller.
II. Advocate Commissioner specifically admitted that there is a partition wall between the two shops and both the shops were being run under different name and style ie., K.M.Traders (disputed shop) and Shamna Traders (adjacent shop).
III. Assistant Labour Officer was examined as RW1 to prove that respondent No.2 the alleged sub-tenant was an employee and certificate dated 05.12.2018 Ext.B1 is the testimony. Licence fee receipt issued by Vadakara Municipality dated 03.02.2017 Ext.B4 is also testimony that the petitioner- tenant had been in conscious and physical possession of the property and therefore, the question of sub-tenancy did not arise. IV. Landlady miserably failed to plead date and month of the subletting, in fact, the pleaded case of the RCREV. NO. 25 OF 2022 7 landlady had been that respondent No.2 was given a separate shop. Therefore, the question of subletting to respondent No.2 at the instance of respondent No.1 - petitioner, would not arise. It is settled law that the onus always remains on the person who asserts it. Therefore, non examination of the petitioner in the evidence would be fatal to the case.
8. On the contrary, Sri.Krishnan Unni assisted by Adv.Mini supported the findings rendered by the Appellate Authority by referring to the categoric observations recorded by the Advocate Commissioner which, despite extensive cross examination, have not been demolished. Report reveals that there was no cash counter of the shop in dispute, it had only a weighing scale all the grocery items were kept outside the veranda commonly and the 2nd respondent for the purpose of sale of the grocery goods was using the shop in question for storage and taking out the goods for supplying to the customers. Tenant had not been consistent as no plea of the employee was taken in the reply Ext.A4 to the legal notice Ext.A2 ibid. The testimony of the Assistant Labour Officer would not RCREV. NO. 25 OF 2022 8 prove the case of the petitioner-respondent No.1-tenant for the reason that the application submitted for obtaining the certificate was post filing of the rent petition. Certificate has been issued in December, 2018 whereas the rent petition was filed in September, 2018. Only thereafter the objections were filed on 10.06.2019. Tenant did not object to the report of the Advocate Commissioner in the absence of any written objections nor stepped into the witness to place on record material to belie the stand of the landlord.
9. We have heard the learned counsel for the parties and appraised the paper book.
10. Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, deal with eviction of the tenant on the ground of subletting. The same reads as under:
"Section 11(4)(i) if the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub- lets the entire building or any portion thereof if the lease does not confer on him any right to do so; or"
11. On analysis of the provisions of the Act, it is evident RCREV. NO. 25 OF 2022 9 that landlord has a ground to seek the eviction of the tenant on the ground of subletting. In order to establish the subletting landlord has not only to plead the date and month but also other material. In support of the case no doubt no specific date and month has been written but it was preceded by a legal notice Ext.A2 dated 08.06.2018 which was replied vide Ext.A4 dated 27.07.2018. But the tenant had not been consistent on the stand and for the first time coined a story that respondent No.2 was working in the shop as an employee. The landlord was supposed to place on record following documents to belie the case of the landlord; 1) details of customers, 2) Profit and Loss, 3) Balance Sheet, 4) Sales Tax Returns, 5) registration under the Kerala Shops and establishment Act, 6) GST or Sales Tax returns etc. On the contrary the documents Exts.B1 to B4 placed on record reveals that attempt was made to obtain a certificate that respondent No.2 was an employee, after the institution of petition. Labour Officer to a categoric question in cross examination denied that she ever visited the shop in question. Thus the identity of respondent No.2 to be an employee of the respondent No.1- petitioner remained a mistery. We would be RCREV. NO. 25 OF 2022 10 failing in our duty in not adverting to certain paragraphs 2 to 7 of the report of the Advocate Commissioner, which read as under:
2. Nobody was present in the petition schedule shop room during inspection. It is revealed in inspection that, in the shop room with No.20/377 and in the petition scheduled shop room business is conducting as one unit. During inspection, the 2 nd respondent, who was sitting at the cash counter of room No. 20/377 had signed on the back side of the warrant.
3. I could not see any building number in the petition schedule room. A white paper in which printed as 'Shamna Traders' is seen affixed in the petition schedule room as well as on the wall on the northern side. Just near to the white printed white paper affixed on the wall in which Shamna Traders in printed a price list of K.M.Traders is seen hanged. It could see only a big weighing machine in the scheduled room during inspection. When it was asked, the 2nd respond who was present in the schedule room during inspection, admitted that only a big weighing machine in available in the room.
4. The room No.20/377 mentioned in the petition, is the room next room to the petition schedule room, on the northern side. It could sees a name board of "
K.M.Traders, Market Road, Vatakara, on the top of the shutter of the said room. Since the sticker of the municipality showing building number is covered with paint, the building number is not visible The 2 nd respondent informed that, the number of the said room is 20/377. The 2nd respondent was present at the cash counter, situates in the said varanda of the said room. When it was asked, the 2nd respondent had shown the license. That stands in the name of 2 nd respondent. In the license, the name of the concern, is shown as 'Shan Traders. The tax receipt for building number also is shown. In the tax receipt, building number is shown as 20/377 and further the new Number also is shown as 9/2625. That is a document RCREV. NO. 25 OF 2022 11 in the name of a 2nd respondent.
5. The license for the room number 20/377 stands in the name R2. As per the license receipt shown by R2 bearing number LIC No.250/A/XX/15 stands in the name of Shan traders. The licensee is allowed for the retail sale of rice, chilly and coconut oil.
6. The registration certificate of K.M.Traders shown to me, stands in the name of R1. The registration certificate is by Commissioner of Food and Safety shown tome,with registration number 213182340001110 is allowed to grocery retailer. All the documents were shown to me, at the cash counter, situates at veranda of room number 20/377 belongs to R2.
7. At the end of the inspection, husband of the R1 by name Poker came to there and after his arrival, he was siting at the cash counter. He tolled me that, he was at mosque for prayer and further tolled that, he is conducting the business on behalf of R1.
12. Petitioner - respondent No.1 - tenant has not been able to belie the aforementioned report either in the cross examination or by bringing the evidence as noticed above, much less did not step into the witness box. The question of identity of the property would not arise for the reason that vide Ext.A1 and A5 both properties had been separately let out by the respondent ie., Ext.A1 to the petitioner - respondent No.1 and Ext.A5 to the respondent No.2, who had subsequently been given the control and possession of shop bearing No.20/378. Report the Advocate RCREV. NO. 25 OF 2022 12 Commissioner belies the stand of the petitioner - respondent No.1.
For the reason aforementioned, we find that the judgment of the appellate authority do not suffer from any illegality and perversity. No ground for interference is made out. Revision petition is accordingly dismissed. One month time from the date of preparation of the certified copy of the judgment is granted to the petitioner to vacate the premises.
Sd/-
AMIT RAWAL JUDGE Sd/-
EASWARAN S. JUDGE nak