Kerala High Court

Abdul Jaleel vs Ramaswamy on 23 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.
        THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
                          RCREV. NO. 8 OF 2019
AGAINST THE JUDGMENT DATED 18.08.2016 IN RCA NO.19 OF 2013 OF III
ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM ARISING OUT OF THE
ORDER   DATED   26.06.2013   IN   RCP   NO.38   OF   2010   OF   I   ADDITIONAL
MUNSIFF COURT, THIRUVANANTHAPURAM


REVISION PETITIONER/1st RESPONDENT/1ST COUNTER PETITIONER:

            ABDUL JALEEL
            AGED 43 YEARS
            S/O P.SHAHUL HAMEED,
            BISMI
            +NIVAS,T.B.JUNCTION,NEYYATTINKARA,THIRUVANANTHAPURAM069
            5 121.
            BY ADVS.
            G.P.SHINOD
            SRI.RAM MOHAN.G.
            SRI.GOVIND PADMANAABHAN
            SHRI.AJIT G ANJARLEKAR


RESPONDENTS/APPELLANT AND 2ND RESPONDENT/PETITIONER & 2ND COUNTER
PETITIONER:

    1       RAMASWAMY,
            AGED 65 YEARS
            S/O ANANTHARAMAKRISHNAN,
            POUZDAR MADOM, T.C.37/1220, KOTTAIKKAKAM, THEKKENADA,
            SOUTH STREET, VANCHYOOR VILLAGE,
            THIRUVANANTHAPURAM-695 035.

    2       M.S.NAWAS,
            S/O SAINULABDEEN, M.V.HOUSE, T.C.NO 39/1331,
            CHALAI (PO), MANACAUD, THIRUVANANTHAPURAM 695 036.

            BY ADVS.
            N.KRISHNA PRASAD
            A.MOHAMMED FAIZAL(M-275)
 RCREV. NO. 8 OF 2019       -2-



        P.SHANES METHAR(K/968/2004)
        PUSHPARAJ.K.P(K/1098/2012)


     THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 23.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 RCREV. NO. 8 OF 2019    -3-



                       ORDER

1. Petitioner is a tenant who has been ordered to

be evicted by the order of the appellate authority vide

judgment dated 18.08.2016 rendered in R.C.A.No.19 of

2013.

2. Respondent - landlord instituted the eviction

petition bearing R.C.P.No.38 of 2010 alleging that the

petitioner - tenant was inducted as a tenant in 2003.

During the subsistence of the tenancy, he sublet the

premises by entering into a partnership deed of 2006.

Noticing that it was a ground of subletting, sought the

eviction on the ground of arrears of rent as well as

subletting as provided under Sections 11(2)(b) and 11(4)

of the Kerala Buildings (Lease and Rent Control) Act,

1965. Petitioner - tenant was earlier proceeded ex parte

and thereafter contested the matter, filed the written

statement and denied the allegation of subletting,

whereas second respondent alleged that he had entered

into a partnership with the first respondent to conduct

the fancy store under the name and style "Shaw and

Company". Since the parties were at variance the

learned Rent Controller framed the following issues:

         "i)    Is there any arrear of rent?

         ii)    Whether        the    1st   respondent       is

liable for eviction u/s.11(2)(b) of the Kerala Building (Lease and Rent Control) Act?

iii) Whether the 1st respondent sublet the petition schedule building to the 2nd respondent?

iv) Reliefs and cost."

3. Both the parties in respect of their respective

stands brought on record following witnesses and the

documents:

"Exhibits marked for the petitioner

A2 02/11/2006 : Copy of Partnership Deed

A3 19/10/2009 : Copy of Professional Tax Receipt A4 : Receipt A5 07/05/2010 : Injunction order in Ext.A1 suit A6 05/05/2010 : Copy of affidavit of 2nd respondent in Ext.A1 suit A7 : Written statement of petitioner in Ext.A1 suit A8 01/08/2003 : Rent Deed A9 : Returned statutory notice accompanied by acknowledgement card A10 : Returned statutory notice accompanied by acknowledgement card A11 06/08/2006 : Statutory Notice.

    A12       08/06/2010         :   Notice
    A13       09/06/2010         :   Postal receipt for
                                     Ext.A12 Notice
    A14                          :   Acknowledgment card
                                     for Ext.A12 Notice
    A15       09/06/2010         :   Postal receipt
    A16                          :   Acknoledgment card
    A17                          :   Notice
    A18       02/07/2004         :   Notice
    A19       21/02/2004         :   Photocopy of notice
    A20       13/07/2010         :   Postal receipt




     A21           03/09/2010             :    Reply notice issued in
                                               response to Ext.A12
     A22                                  :    Court notice


     Exhibits marked for the Respondent:-      NIL
     Court Exhibits:
     X1            27/06/2012             :    Authorization letter
     X2                                   :    Copy of relevant page
                                               of Property Tax
                                               Assesment list of the
                                               Corporation 1993-94
     X3            9/07/2012              :    Discharge certificate
                                               issued by Mitra Hospital
     Witness for the Petitioner:-
     PW1           26/05/2012             :    Rameswamy

Witnesses examined for the Respondent:-

     CPW1          07/06/2012             :    Navas
     CPW2          28/06/2012             :    Suma.M.L.
     CPW3          10/06/2013             :    Abdul Jaleel
     CPW4          14/06/2013             :    J.M.Saji"

4. Learned Rent Controller, on analysis of the

evidence, did not agree with the contention of the

respondent - landlord and rejected the petition on the

ground of subletting, but allowed it on the ground of

arrears of rent.

5. As per the provisions of the Act, in case the

tenant pays the arrears of rent as determined by the

landlord in the order of eviction within the period

prescribed, the ground of eviction would no longer be

sustainable which was adhered to. Landlord instituted

R.C.A. bearing No.19 of 2013. Lower appellate court on

re-appreciation of the evidence on record and noticing

the contents of the partnership much less resolution

found that it was a clear case of subletting and ordered

for eviction. It is in that background the present revision

petition has been filed.

6. Learned counsel appearing on behalf of the

Revision Petitioner - tenant, in support of the

aforementioned case, raised the following submissions:

The finding of the appellate court is based upon

surmises and conjectures much less there is misreading

of the oral and documentary evidence. Non-production

of the books of accounts and income tax return could not

have been taken as an adverse inference of ordering the

eviction as partnership deed has already been brought on

record. There was no serious challenge in the cross-

examination regarding the existence of the partnership

deed as it was dissolved in 2010.

7. On the other hand learned counsel for the

respondent - landlord supported the findings of the

appellate authority and submitted that it was a clear

case of subletting as the alleged sub-lessee/ respondent

No.2 candidly admitted that he was paying rent to

respondent No.1, though partnership deed is an entity

and should have paid the rent to the landlord, had there

been a relationship of landlord and the tenant.

8. We have heard learned counsel for the parties

and appraised the paper book.

9. Concededly, the tenancy was between the

respondent - landlord and petitioner - tenant who had

taken the premises on rent to run a business under the

proprietorship form. Tenancy, for the sake of repetition,

is of 2003. Partnership deed is of 2006, whereby the

respondent No.2 in the rent petition was inducted as a

partner. The partnership deed was executed without the

consent of the landlord. Therefore, gave a cause to the

landlord for determination of the tenancy by institution of

the petition in 2010. Through in the testimony of both

the tenant and sub-tenant, it has come on record that

the sub-tenant was paying the rent to the first tenant. It

is wholly intriguing that under what circumstances one of

the partner would be paying rent to another partner

when there was no dispute of tenancy between the

landlord and a partnership firm. It is a camouflage to

prevent from the ground of eviction, the ground of

subletting. Time and again courts below, on examination

of the documents have been consistently holding that it is

an attempt to ward off the liability of eviction but on

analysis of the evidence in cross examination, it has come

on record that it was a clear case of subletting.