Kerala High Court
Unni Vacco vs Thankamma Gregory on 3 February, 2003
Equivalent citations: 2003(2)KLT459
Author: K.K. Denesan
Bench: K.K. Denesan
ORDER S. Sankarasubban, J.
1. Petitioner is the tenant. Revision is filed against the judgment in R.C.A.No. 19 of 2002 of the District Court, Ernakulam. The District Court confirmed the order of eviction under Sections 11(3), 11(4)(i) and 11 (4)(iii) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). The order of eviction passed by the Rent Control Court under Section 11(4)(vi) was set aside. It is against that the present revision is filed.
2. We shall refer to the array of parties as in the Rent Control Petition. The first petitioner is the mother of the second petitioner. The second petitioner is of unsound mind and is represented by guardian, his wife. The Rent Control Petition was filed for evicting the first respondent, who took the building on rent. According to the petitioners, the building has been subleased in favour of respondents 2, 3 and 4. It is further stated that the second petitioner needs the building for his own occupation. The other grounds urged are that the tenant has got another building in his possession.
3. The main case submitted by the petitioners is that the second petitioner is of unsound mind. In the present building, he is staying along with his brother, who is also of unsound mind. The present building is not convenient for the continued residence of the petitioners. It has become dilapidated. Further, all the family members are not able to pull together. So far as the sublease is concerned, what is urged is that portion of the building had been subleased by the tenant in favour of respondents 2, 3 and 4. Second respondent is conducting a restaurant called "Copper Chimney Restaurant". Third respondent is conducting an office of the Ernakulam District Head Load and Workers Union (C.I.T.U.) and the fourth respondent is conducting a 'C' class shop. Another contention raised was that the first respondent has ceased to occupy the building for more than six months and hence, he is entitled to be evicted under Section 11(4)(v) of the Act.
4. The tenant denied the contentions raised and submitted that there was no need for the second petitioner to shift the present house. He also denied sublease. So far as Section 11(4)(iii) of the Act is concerned, it is submitted that that the building is not suitable for him.
5. With these pleadings, the parties went to evidence. On behalf of the petitioners, second petitioner's wife was examined as PW.1 and two other witnesses were examined as PWs.2 and 3. On behalf of the respondents, first respondent was examined as RW. 1 and two other witnesses were examined as RWs.2 and 3. Exts.Al to A8 were marked on the side of the petitioners and Exts.B 1 to B7 were marked on the side of the respondents.
6. We heard learned counsel for the petitioner Sri. S. Sreekumar and learned counsel for the respondents Sri. C.K. Aravindaksha Menon.
7. The main ground urged by the learned counsel for the petitioner is that the Appellate Authority has not appreciated the evidence adduced in the case. It has merely upheld the findings of the Rent Control Court. The main ground urged is that the matter should be remanded to the Appellate Authority. This was submitted because, according to the petitioner, what this Court should do under Section 20 of the Act is to find out whether appreciation of evidence of the Authorities below is reasonable or not. It was further submitted that the ground on which eviction is ordered does not exist. According to us, the ground urged by the learned counsel for the petitioner cannot be accepted. What the Appellate Authority has done is that after going through the evidence it says that it agree with the finding of the trial court. We are of the view that in these circumstances, it is not correct to say that the Appellate Court has not gone into the records. What it says is that the finding arrived at by the trial court is correct. We wish to further state that under Section 20 of the Act, we have got power to go through the evidence. Hence, we went through the evidence. We find that it is not necessary to remit back the case for this purpose.
8. So far as the ground under sub-lease is concerned, the report of the Commissioner, Ext.C1 clearly shows that different portions of the building are occupied by different sets of people. The second respondent is conducting a hotel business, third respondent occupies office of the CITU Headload workers and the fourth respondent is conducting a 'C' class shop. The thrust of the argument of the learned counsel for the tenant is that the Commissioner by himself has come to the conclusion that there has been sub-lease. According to the learned counsel, the licence for conducting hotel was taken in the name of the tenant. So far as the 'C' class shop is concerned, it is not leased. It is only a licence granted and so far as the office of CITU Headload workers is concerned, what is stated is that they were not in exclusive possession.
9. It is true that with regard to the question of sub-lease, there should be an exclusive possession by the alleged sublessee. But as stated in many cases, the transaction is between the lessee and sublessee. When a person other than the tenant is found to be in the building, according to us, the burden is on the tenant to show that there is no sub-lease or transfer of possession. In this case, we find that the tenant has not discharged the burden. Both the courts found that the sub-lease is proved. The tenant, even though had tried to argue on the basis of the licence, according to us, the mere fact that the licence is in the name of the tenant cannot ignore the possibility of another person being in possession. The Commissioner has visited the property and he has filed a report. According to us, his evidence is relevant. There is nothing wrong in accepting the report of the Commissioner and on the basis of it, the other evidence adduced in the case, one can come to the conclusion that the tenant has not been successful in establishing that respondents 2, 3 and 4 are not in exclusive possession. The evidence of RW. 1, Secretary, Kerala High Court Bar Association also shows that the second respondent is conducting a hotel in his own name.
10. In the above view of the matter, we- are of the view that the ground of subletting is properly proved against the tenant by the court below. The next aspect is regarding bona fide need. The bona fide need was alleged by the second petitioner, who is a person of unsound mind. It has come in evidence that the present building in which they are residing is in a dilapidated one. Further it is found that the petitioner's brother is also unsound man and the members who are residing in the family are not able to pull together well. In these circumstances, it cannot be said that the finding arrived at by the court below that the building is required for the bona fide use of the second petitioner is not correct. The present building in which he is residing does not belong to him absolutely. Hence, the contention that he has to stay there, cannot be said to be without any basis. So far as the claim under Section 11(4)(iii) of the Act is concerned, we agree with the courts below in ordering eviction. On the whole, we find that the Appellate Authority's order is not liable to be interfered with. Hence, we uphold the order passed by the Appellate Authority. We grant four months to the tenant to vacate the building on condition that he files an undertaking before the trial court within four weeks from today that he will vacate the building on the expiry of the fourth month and also that he will pay rent upto date. If such an affidavit is not filed as stipulated above, the tenant will not be entitled to the benefit of the order.
Civil Revision Petition is disposed of as above.