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. 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

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

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

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

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

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

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

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

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

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.