Kerala High Court
N.C. Mohammed Iqbal vs A.K. Kamal on 8 July, 2010
Author: Pius C.Kuriakose
Bench: Pius C.Kuriakose, C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 41 of 2008()
1. N.C. MOHAMMED IQBAL, S/O. N.C. ALI,
... Petitioner
Vs
1. A.K. KAMAL, S/O. K.P. POKKU HAJI,
... Respondent
2. A.K. BASHEER, S/O. K.P. POKKU HAJI,
3. A.K. SHARAFUDEEN,S/O.K.P.POKKU HAJI,
4. A.K. NAJEEB, S/O.K.P.POKKU HAJI,
5. A.K. RAZIYA, D/O. K.P.POKKU HAJI,
6. A.K. LAILA, D/O. K.P.POKKU HAJI,
7. A.K. ASMA, D/O. K.P.POKKU HAJI,
8. AYSHU, W/O. MOOSA HAJI,
9. FATIMA, W/O. MOOSA HAJI,
10. USMAN, S/O. MOOSA HAJI,
11. FAISAL, S/O. MOOSA HAJI
12. RAFEEQUE, S/O. MOOSA HAJI
13. HAROON, S/O. MOOSA HAJI
14. SHOUKATH, S/O. MOOSA HAJI
15. ASHRAF, S/O. MOOSA HAJI
16. LEEMA, D/O. MOOSA HAJI
17. SHAMEENA, D/O. MOOSA HAJI
18. SHADIYA, D/O. MOOSA HAJI
19. SHAHINA, D/O. MOOSA HAJI
20. SAMEERA, D/O. MOOSA HAJI
21. JOSIYA, D/O. MOOSA HAJI
For Petitioner :SRI.R.BINDU (SASTHAMANGALAM)
For Respondent :SRI.A.SUDHI VASUDEVAN
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :08/07/2010
O R D E R
PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.
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R.C.R. No.41 of 2008
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Dated this the 8th day of July, 2010
O R D E R
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Pius C.Kuriakose,J.
The alleged sub-tenant is in revision. The case of the landlord was that the tenant in respect of the premises which are subject matter of the Rent Control Petition - a fairly large hall in the ground floor portion of a double storied building - was one Eroth Athilan Moosa Haji, the 1st respondent in the Rent Control Petition and that Sri.Moosa Haji has sublet or transferred the petition schedule hall to the revision petitioner, who was arrayed as the 2nd respondent in the Rent Control Petition. The defence that was taken by the revision petitioner was that he is not a sub-lessee. According to him, he was lessee of the petition schedule premises and the premises which were subject matter of RCP.No.80/2001 simultaneously instituted by the respondents who are the RCR.41/2008 2 legal heirs of the deceased original landlord, one Sri.Pokku Haji. The case of the landlords is that the revision petitioner was tenant of only the building which is subject matter of RCP.80/2001, which is a small room situated adjacent to the premises, which are subject matter of the present RCP. Eviction was sought in the present Rent Control Petition invoking the grounds of bonafide need, arrears of rent and subletting. The 1st respondent in the Rent Control Petition Sri.Moosa Haji did not raise any contest. The issue which most seriously arose in the case as the only contesting party was the revision petitioner alleged sub-lessee, was as to what was the jural status of the revision petitioner whether tenant or an unauthorised sub-lessee or transferee. In the first instance, upholding revision petitioner's contention that the rooms which are subject matter of RCP.80/2001 and the present RCP were entrusted with him by Sri.Pokku Haji as one single entrustment on the same day both Rent Control Petitions were dismissed. Later, pursuant RCR.41/2008 3 to orders passed by the Appellate Authority the issue came back to be decided again. Before the Rent Control Court the landlords relied on Ext.A3. The revision petitioner relied on Exts.B1 and B2 apart from relying on other documents. Exts.B1 and B2 contains alleged signatures of Sri.Pokku Haji whereas Ext.A3 relied on by the landlords did not contain any such signature. Landlords' stand was that at the time of Ext.A3 Sri.Pokku Haji was completely incapacitated due to paralysis and at that time (from 1995 onwards) he was not capable of subscribing his signature to any document. On account of paralysis he used to affix only his thumb impression. According to the landlord, the thumb impression of Sri.Pokku Haji is seen affixed to Ext.A3. As requested by the landlord the Rent Control Court referred Ext.A3 along with documents containing the admitted thumb impressions of Sri.Pokku Haji to the Forensic Science Laboratory, Thiruvananthapuram for scrutiny and report. The report that was received is to the effect that a RCR.41/2008 4 comparison of the admitted and disputed thumb impression has not been possible as the thumb impression on Ext.A3 is the RTI while the thumb impressions on Exts.A11 and A12 are the LTIs. The Rent Control Court, however, notwithstanding the above report decided the issue in favour of the landlord on the basis of several circumstances. Some of the circumstances relied on were that the revision petitioner did not have the courage of having the genuineness of Exts.B2 and B3 established by subjecting them to similar forensic scrutiny as was done by the landlord in the case of Ext.A3. Secondly, the landlords were consistent in their case that from 1995 onwards Sri.Pokku Haji, the landlord, due to paralysis was incapable of putting his signatures to documents. This version is supported by Exts.A11 and A12 which are documents admittedly executed by Sri.Pokku Haji after 1995. The court also noticed that there was no serious challenge to the version of the landlord that since 1995 Sri.Pokku Haji RCR.41/2008 5 due to paralysis was incapable of subscribing his signature to documents. For these reasons mainly the Rent Control Court concluded that Ext.A3 was a genuine document. On the basis of such a conclusion it was held that the entrustment by the landlord of the schedule building was not to the revision petitioner but to Sri.Moosa Haji. Appellate Authority under the impugned judgment made thorough re-appraisal of the evidence and has concurred with the above conclusion of the Rent Control Court. In fact, what both the Rent Control Court and Appellate Authority did, on the basis of their conclusion that the jural status of the revision petitioner is only that of a sub-tenant, was to order eviction not only on the basis of subletting but also on the ground of bonafide need for own occupation. This was done relying on the decision of this court which takes the view that a sub-tenant is not entitled to resist landlord's plea for eviction on other grounds, unlike a tenant. If the finding of the authorities that the status of the revision petitioner RCR.41/2008 6 is only that of a sub-tenant can be approved, then the further finding that the revision petitioner is not entitled to challenge the eviction order passed on the ground under sub-section 3 of Section 11 will have to be approved.
2. In this revision filed under Section 20 various grounds have been raised assailing the finding of the authorities that the status of the revision petitioner is that of a sub-tenant/transferee only. Sri.R.Bindu Sasthamangalam, learned counsel for the revision petitioner addressed very strenuous arguments before us based on those grounds. He took us to the recitals in Ext.A3 and submitted that the indications in Ext.A3 itself are that the entire ground floor portion of the building was let out. When we enquired of the counsel as to why the entire ground floor portion of a commercial building situated in a vantage locality in Kozhikode Muncipal Corporation should be let out to the revision petitioner on a relatively small rent of Rs.400/- per mensem, his RCR.41/2008 7 answer was that unlike ordinary tenancies the liability of paying the property tax to the Corporation is fastened upon the tenant. Mr.Bindu also submitted that the version of the landlord that the adjacent room which is subject matter of RCP.80/2001 was let out orally, is highly improbable. This landlord was letting out buildings only by means of documents and was issuing receipts also while receiving rent. It is not conceivable that such a landlord will let out building even if it is a small one to any tenant orally. The explanation of the learned counsel as to why his client did not make any endeavour to have a forensic scrutiny of Exts.B2 and B3 was that the revision petitioner was advised that once the landlord was unsuccessful in establishing the genuineness of Ext.A3, the consequential result will be that the contra version of the tenant will stand accepted. Mr.Bindu took exception to a document (a book containing the counterfoils of rent receipts issued by the landlord) produced by the landlord and submitted that RCR.41/2008 8 the said document is a concocted one brought into existence for defeating the valid contentions of the revision petitioner. All the submissions of Sri.Bindu were resisted by Sri.A.Sudhi Vasudevan, learned counsel for the respondents, who supported the impugned judgment of the Appellate Authority on the various reasons stated therein. The learned counsel reminded us of the limits of our jurisdiction under Section 20.
3. Reminding ourselves of the limits of our present jurisdiction under Section 20 we have made a re- appraisal of the documents to which our attention was drawn by Sri.R.Bindu. We have scanned Ext.A3. We have also examined Exts.A11 and A12 as well as Exts.B1 and B2. We have considered the commissioner's report. What is noticeable from the commissioner's report is that the petition schedule hall as well as room, which is subject matter of RCP.No.80/2001, though they form part of a double-storied building are capable of being enjoyed separately. The petition schedule hall has the direct RCR.41/2008 9 frontage of Calicut Beach Road. The room, which is subject matter of RCP.80/2001, has the frontage of the above road and has the frontage of a lane also. The Advocate Commissioner, who submitted Ext.C1, has not reported that the activities of the revision petitioner in that room, which is admittedly let out to him, are extended to the petition schedule hall also. This, according to us, is an additional circumstance which fortifies the view taken by the Rent Control Court and Appellate Authority in this case regarding the jural status of the revision petitioner.
4. In the present jurisdiction under Section 20 we are not ordinarily expected to re-appraise evidence and substitute our conclusions on fact for those entered by the fact finding authorities especially when the conclusion arrived by the fact finding authorities are reasonable conclusions founded on evidence. Having scanned the judgment of the Appellate Authority we are of the view that the findings entered therein regarding RCR.41/2008 10 the jural status of revision petitioner are findings based on evidence including circumstantial evidence and also that those findings are supportable in the realm of probabilities also. The revision petitioner does not have a case that Sri.Moosa Haji who is the tenant under Ext.A3 colluded with the landlords. Sri.Moosa Haji remained ex-parte. Significantly no endeavour is made by the revision petitioner to cite Sri.Moosa Haji as a witness so that some evidence could be adduced regarding the correctness of the contentions raised by him. The question we are called upon to decide is whether findings arrived by the fact finding authority and the Appellate Authority are illegal, irregular and improper as envisaged by Section 20. We are of the view that the above question can be answered only in negative. In that view of the matter we dismiss the RCR. As we concur with the view of the statutory authorities that once status of the revision petitioner is found that of a sub-lessee, he is not entitled to resist order of eviction RCR.41/2008 11 on the ground of bonafide need for own occupation.
5. Normally we are not inclined to grant time to a sub-lessee to surrender of the premises. However, we feel that in this case there is justification for granting time. Post this case as to be spoken to on Monday (12.7.2010) along with RCR.40/2008.
PIUS C.KURIAKOSE, JUDGE.
C.K.ABDUL REHIM, JUDGE.
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