Kerala High Court
K.S.Usman vs Vidyavathi @ Vidya Kalesan on 11 October, 2013
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR. JUSTICE P.UBAID
TUESDAY, THE 25TH DAY OF FEBRUARY 2014/6TH PHALGUNA, 1935
RCRev..No. 14 of 2014 ()
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AGAINST THE JUDGMENT IN RCA 95/2012 of I ADDL.DISTRICT COURT,
ERNAKULAM DATED 11-10-2013
AGAINST THE ORDER IN RCP 66/2011 of III ADDL.M.C.EKM (RENT CONTROL)
DATED 29-09-2012
REVISION PETITIONER(S)/(APPELLANT/RESPONDENT):
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K.S.USMAN
S/O.LATE SEETHY, KADAVIL HOUSE, EDAPPALLY
KOCHI-24.
BY ADV. SRI.T.M.ABDUL LATHEEF
RESPONDENT(S)/(RESPONDENTS/ADDL.PETITIONERS & ADDL.RESPONDENTS):
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1. VIDYAVATHI @ VIDYA KALESAN
D/O.VAMANAN, AMRUTHESWARI NILAYAM, CIVIL STATION
KOZHIKODE-673 001.
2. BHAGYALAKSHMI
D/O.VAMANAN, C.H.COLONY, CHEVARAMBALAM
KOZHIKODE-673 001.
3. ROHINI
W/O.VAMANAN, AMRUTHESWARI NILAYAM, CIVIL STATION
KOZHIKODE-673 001.
4. PREMDEEP
S/O.VAMANAN, AARVEE NIVAS, BASIN CANAL ROAD
COCHIN-682 031.
5. DEVIDAS
S/O.VAMANAN, AARVEE NIVAS, BASIN CANAL ROAD
COCHIN-682 031.
6. VIDYADHER
S/O.VAMANAN, AARVEE NIVAS, BASIN CANAL ROAD
COCHIN-682 031.
7. BALAGOPAL
S/O.VAMANAN, CD-68, NEW C & D COLONY
HILL VIEW, J.S.P.L., RAIGARH
CHATTISGARH-496 001.
R1 BY ADV. SRI.V.V.SURENDRAN(CAVEATOR)
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
30.1.2014, THE COURT ON 25.02.2014 DAY PASSED THE FOLLOWING:
"C.R"
K.T.SANKARAN & P.UBAID,JJ.
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R.C.R. No.14 of 2014
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Dated this the 25th February, 2014
O R D E R
Ubaid,J.
Concurrent findings of the Rent Control Court and the Rent Control Appellate Authority under Section 11 4 (i), 11 (4) (ii) and 11 (4) (iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for short) against the tenant, are under challenge in this revision brought under Section 20 of the Act, by the tenant. Respondents herein are the legal heirs of the original landlord, who brought eviction proceedings before the Rent Control Court (Munsiff Court, Ernakulam) as RCP No.66 of 2011. The petition schedule building was let out to the revision petitioner herein by the deceased landlord on 1.5.1984 on a monthly rent of 3,340/-, for the purpose of running the godown of a parcel service, by name 'M/s.Saurashtra Roadways'. Subsequently, the rent was enhanced and now it is 5,440/- per month. The landlord R.C.R. No.14 of 2014 2 alleges that the respondent-tenant has sublet the building to his brother Ummer and the said Ummer has started an establishment of his own in the building by name 'M/s.SRD Logistics". The said sublease arrangement was made by the tenant Usman without the knowledge and consent of the landlord. But the said arrangement came to the knowledge of the landlord much later. The petitioner also alleges that by rough and careless user of the building for parcel services, by bringing heavy parcel vehicles, the tenant and the sub-tenant have caused damage to the building, and this has diminished the value and utility of the building materially and permanently. The upstair portion of the building is occupied by the son of the landlord, but he finds it not safe to continue there, when the down stair portion occupied by the tenant stands damaged materially. It is also alleged in the petition for eviction that the tenant has acquired a building of his own, wherein, he has started a business by name "Lens and Frames", and he has thus abandoned the business which he started in the petition schedule building. Thus, the allegations in the eviction petition constitute the grounds for eviction under 11 4(i), 11 R.C.R. No.14 of 2014 3 4 (ii) and 11 (4) (iii) of the Act.
2. The tenant, who is the revision petitioner herein, entered appearance in the trial court and filed counter statement resisting the prayer for eviction on the contention that he has not, in fact, caused any damage to the tenanted building, except the ordinary wear and tear due to the user for the purpose for which it was taken on rent, that he has not acquired any building of his own, that he has only joined a partnership doing a business by name 'Lens and Frames' in another building, that he has not sub let the petition schedule building to his brother Ummer, that the business now being conducted in the petition schedule building is a business jointly run by him and his brother Usman and that he has not in any manner transferred the premises to his brother.
3. The parties adduced oral and documentary evidence during trial. During the proceedings, the trial court had appointed an Advocate Commissioner to inspect the tenanted premises and submit report. Pending the proceedings, the original landlord died. Some of the legal heirs were impleaded as supplemental petitioners, and the R.C.R. No.14 of 2014 4 other legal heirs, who could not join as petitioners, were brought on party array as supplemental respondents. The 2nd additional petitioner was examined as PW1 and Exts.A1 & A2 series were marked on the side of the petitioners during trial. The tenant was examined as RW1 and Exts.B1 and B2 were marked on his side. The report submitted by the Advocate Commissioner was marked as Ext.C1.
4. On an appreciation of the oral and documentary evidence, the trial court found that the tenant has, in fact, sub let the premises to his brother Ummer, that he has acquired a building of his own for his business purposes, and that the tenant and his brother have caused material damage to the building in such a way as to diminish its value and utility.
5. Accordingly, the trial court ordered eviction under Sections 11 (4) (i), 11 (4) (ii) and 11 4 (iii) of the Act. Aggrieved by the order of eviction, the tenant approached the Rent Control Appellate Authority (District Court, Ernakulam) with RCA No.95 of 2012. In appeal, on an appreciation of the oral and documentary evidence, the appellate authority concurred with the findings of the trial R.C.R. No.14 of 2014 5 court and dismissed the appeal. Now the tenant has come up in revision before this Court under Section 20 of the Act. The scope of probe in this revision is to find whether the order and judgment of the courts below are legal and proper, or whether the orders suffer from any legal infirmity calling for interference by this Court in exercise of the revisional powers under Section 20 of the Act. Without much probe or enquiry, it can be found that the approach of the courts below as regards the ground under Section 11 (4 ) (iii) of the Act, is erroneous. The courts below found on the said ground against the tenant, that the tenant has started a business of his own in another building, which he acquired subsequently.
6. It is pertinent to note that the landlord has no definite case regarding the nature of the said acquisition. The landlord can seek eviction under Section 11 (4) (iii) of the Act only, if the tenant has subsequently put up a building of his own, which is reasonably sufficient for his requirements, or has subsequently acquired possession of another building, which is reasonably sufficient for his requirements. The acquisition subsequent to the tenancy, R.C.R. No.14 of 2014 6 meant under Section 11 (4) (iii) can be either acquisition of some other building or space under tenancy, or it can even be a case of the tenant himself acquiring a building of his own or putting up a building of his own. Whether it is own acquisition, or acquisition by way of tenancy, the essential condition is that the building so acquired by the tenant must be reasonably sufficient for his requirements. In this case, even before going to the question of reasonable sufficiency, it can be found that there is no acquisition in this case as meant under Section 11 (4) (iii) of the Act.
7. Of course, it is true that the tenant-appellant is partner in a firm conducting a franchisee outlet of optical goods by name 'Lens and Frames' The said partnership concern has two branches; one at Broadway, Ernakulam and the other at M.G Road, Ernakulam. The tenant has admitted in evidence that he is a partner in the said business. There is nothing to show that he is an active partner or managing partner, or that he has actual control over the said partnership business. Just because the tenant has joined a partnership business, it cannot be said that he has acquired possession of the said building, wherein, the said R.C.R. No.14 of 2014 7 partnership business is being conducted. There is nothing to show that the said building belongs to the partnership. The only thing or evidence brought out in this case is that subsequent to this tenancy, the tenant joined the said partnership business. There is no evidence to prove acquisition of building or space by the tenant, as meant under Section 11 (4) (iii) of the Act. Just because the tenant has joined a partnership business being conducted in another building, and when the said building does not belong to the firm as such, it cannot be found that the tenant has acquired possession of another building. Accordingly, we find that the order of the courts below granting eviction under Section 11 (4) (iii) of the Act is liable to be set aside.
8. The definite case of the landlords in this case is that the tenant-Usman has handed over the tenanted premises to his brother Ummer and that the said Ummer has been conducting a business of his own in the tenanted premises. The tenant has well admitted the presence of his brother in the tenanted premises, conducting business there. The business now being conducted in the premises is R.C.R. No.14 of 2014 8 'Ms/.SRD Logistics'. The tenant has no case in the pleading or in evidence that it is a partnership business being conducted by him and his brother Ummer. The report and the evidence of the Advocate Commissioner will show that when the Commissioner inspected the premises, he could not see the tenant conducting any business activity there. The tenant has practically admitted the active presence of his brother Ummer doing business in the premises. The tenant has no case that his brother would only help him in his business, or that he is an employee under him, or that he is a partner in his business. In such a circumstance, the court will have to find a case of sub-tenancy against the tenant.
9. This is not a case where sub-lease is authorised by the contract of lease. Sub-lease is a secret arrangement or clandestine arrangement made between the tenant and the sub-tenant. While creating such a relationship of sub- lease, they will take all care and precaution not to create any document or circumstance, which will come to the notice of the landlord. In M/s. Bharath Sales Ltd v. Life Insurance Corporation of India [AIR (1998) SCC 1240], R.C.R. No.14 of 2014 9 the Hon'ble Supreme Court has held that sub-letting can be inferred from proof of delivery of possession and other circumstances, and that affirmative evidence proving payment of monetary consideration to the tenant is not necessary to prove sub-lease. In Unni Vacco v. Thankamma Gregory [2003 (2) KLT 459], this Court has held that in a case where a person other than the tenant is found in the tenanted premises doing some business, the burden is on the tenant to prove that there is no sub-lease or transfer of possession. In Jacob v. Pradeep Naik [2009 (2) KLT 262], this Court has explained the scope of Section 11 (4) (i) of the Act, and has held that it is not necessary to show that exclusive possession of tenanted building has been unauthorizedly transferred to the alleged sub-lessee and that there is landlord-tenant relationship between the tenant and the alleged sub-tenant. What is made objectionable as a ground for eviction under Section 11 (4) (i) of the Act is transfer of tenant's rights under the lease without the consent of the landlord.
10. In Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others [ (2010) 1 R.C.R. No.14 of 2014 10 SCC 217], the Hon'ble Supreme Court has held thus:
"The legal position that emerges from the aforesaid decisions can be summarised thus:
(i) In order to prove mischief of sub-
letting as a ground for eviction under rent control laws, two ingredients have to be established (one) parting with possession of tenancy or part of it by the tenant in favour of a third party with exclusive right of possession, and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.
(ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to sub-letting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.
(iii) The existence of deed of partnership between the tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person.
(iv) If the tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.
(v) Initial burden of proving sub-letting is R.C.R. No.14 of 2014 11 on the landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to the tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.
(vi) In other words, initial burden lying on the landlord would stand discharged by adducing prima facie proof of the fact that a party other than the tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted."
11. In the said reported case, the Hon'ble Supreme Court has held that the initial burden of proving sub-lease is on the landlord, and once it is discharged by him, the tenant will have to explain the presence of the alleged tenant in the premises, and he will have to prove that it is not a case of sub lease. Parting with possession of the tenanted premises is well proved in this case. The tenant has admitted that his brother Ummer has been conducting business there for years. Even in a case where the tenant has admitted some partners in his business, the court will have to enquire and find out whether the said partnership is ostensible, and some deed of partnership is drawn to conceal the real R.C.R. No.14 of 2014 12 transaction of sub-letting. For the purpose of coming to the right finding, "the court may tear the veil of partnership to find out the real nature of the transaction entered into by the tenant".
12. On a perusal of the case records, we do not find anything in this case to show that the tenant's brother Ummer is his partner, or that he is only his employee,or that he would simply help him as brother. The tenant has admitted the active presence of his brother conducting business in the tenanted premises under a different name, and there is nothing to show that the tenant has active control or dominion over the said business. It has come out in evidence that the tenant's brother Ummer has another business concern by name "M/s. SRD Logistics" in another building in the same locality. We do not think that in normal circumstances two persons can have business under the same name and style in the same locality. This fact itself, will prove that the business by name "M/s. SRD Logistics", in fact, belongs to the tenant's brother Ummer. When the alleged sub-tenant has his own business by name M/s.SRD Logistics in another building in the same locality, it is R.C.R. No.14 of 2014 13 impossible to believe that the business in the tenanted premises under the said name and style belongs to the tenant. When all the above facts are considered together, and when the active presence of the tenant's brother conducting business in the tenanted premises, otherwise than as an employee or partner, is well proved, and rather admitted, the only finding possible under the law is that he has been conducting business there as a sub-tenant. Accordingly, we find that the two authorities below have come to the right finding under Section 11 (4) (i) of the Act, and so we are inclined to confirm the said finding.
13. Now let us come to the other ground for eviction under Section 11 (4) (ii) of the Act. Admittedly, the business now being conducted in the premises involves parcel business also, and there is no doubt that the tenant or the sub tenant occupying the premises will have to use heavy vehicles in the premises. Admittedly, one of the landlords has been residing in the up stair portion and his apprehension is that if the tenant continues to use the premises negligently and carelessly causing damage to the down stair portion, he cannot safely reside in the up stair R.C.R. No.14 of 2014 14 portion.
14. Ordinary wear and tear and depreciation due to normal user will not amount to the ground for eviction under Section 11 (4) (ii) of the Act. What is required under the said section to constitute cause of action for eviction is user in such a way as to diminish the value and utility of the building materially and permanently.
15. In Reghunathan v. Varghese [2005 (4) KLT 147], the Hon'ble Supreme Court has held that the words 'materially' and 'permanently' are not disjunctive, and that the question whether the act of the tenant has diminished the value and utility of the building materially and permanently depends on various circumstances like the nature of the building, the purpose of letting, terms of the contract, and nature of interference with the structure by the tenant etc. Of course when heavily loaded heavy vehicles are brought to the premises, including the floor inside, the possibility of such vehicles hitting on the walls in the process of loading or unloading cannot be factually denied by the tenant, and such definite denial is not there, in evidence. That the building has been damaged, or that R.C.R. No.14 of 2014 15 some material cracks have developed on the walls is well proved by the report of the Advocate Commissioner, corroborated by his evidence during trial. There is no doubt that, if heavily loaded heavy vehicles hit on the walls many times as part of the business being conducted there, it will definitely cause cracks and other damage on the walls. There is no doubt that such damage will diminish the value and utility of the building. In Vipin Kumar v. Roshan Lal Anand and Others [(1993) 2 SCC 614] the Hon'ble Supreme Court has held that the diminution in value and utility of the building will have to be assessed from the point of view of the landlord, and not that of the tenant. The report of the Advocate Commissioner and also the evidence given by the Commissioner, will prove that the tenanted building in this case is extensively damaged. We do not think that it is ordinary wear and tear in the course of normal user. One test to decide whether the alleged user and the damage caused to the building has materially and permanently diminished the value of the building, is to see whether anybody else would take the building on rent in the present condition. We do not think that in the present R.C.R. No.14 of 2014 16 condition reported by the Advocate Commissioner, anybody would come forward to take the building on rent, and nobody would think that business activity can be safely conducted there without conducting material repairs. On inspection, the Advocate Commissioner noticed cracks on the walls, and also electrical wiring and cable line detached and hanging down. The Commissioner also noticed some damage to the concrete slabs of the septic tank and some material damage on the floor of the building. Cracks were noticed on the pillars also by the Advocate Commissioner. The genuineness of this report is not disputed or challenged by the tenant. We find that the damage noticed by the Commissioner in this case is not simply ordinary damage, or wear and tear due to normal user. We find that it is material damage affecting the value and utility of the building permanently, and that it would be unsafe to continue in the premises without conducting necessary repairs, or that nobody else would take the building on rent in the present condition, without making material repairs to make it safe and convenient. We find that the landlords in this case have well proved the ground for eviction under Section 11 R.C.R. No.14 of 2014 17 (4) (ii) of the Act also. Accordingly, we find that the finding made by the authorities below on the said ground is correct.
16. In the light of the above findings made by us, this revision will have to be partly allowed to the limited extent of setting aside the order of eviction under Section 11 4 (iii) of the Act, but the other part of the order will have to be confirmed.
In the result, this revision petition is allowed in part to the very limited extent of setting aside the order of eviction passed under Section 11 (4) (iii) of the Act . But the other grounds for eviction and the orders passed thereon by the courts below are confirmed in revision. In the particular facts and circumstances of the case, the parties will bear their respective costs of this proceedings.
Sd/-
(K.T.SANKARAN, JUDGE) Sd/-
(P.UBAID, JUDGE) ma R.C.R. No.14 of 2014 18 Spoke on 26.2.2014 After pronouncing the judgment, the learned counsel for the revision petitioner made a request to grant some reasonable time to the petitioner to vacate the premises. On hearing both sides, we feel it just and appropriate to grant a reasonable time of two months to the petitioner to vacate the premises on condition that he shall make an undertaking to that effect, that he shall make prompt payment of rent, and that he shall not make any further damage to the building.
Accordingly, the petitioner is granted two months time to vacate the premises on the following conditions:
a) That the petitioner shall file an affidavit before the executing court, within two weeks from this date, undertaking that he will vacate the premises within two months from this date.
b) That the petitioner shall deposit the entire rent arrear before the executing court within one month from this date, and shall make payment of the future rent before he vacates the premises. R.C.R. No.14 of 2014 19
c) That the petitioner shall not cause any further damage to the building, and an affidavit to that effect shall be filed before the executing court within two weeks from this date.
d) If any of the conditions is violated, the executing court shall proceed with execution, and for the time being the execution proceedings shall be kept in abeyance.
Sd/-
K.T.SANKARAN JUDGE Sd/-
P.UBAID JUDGE ab /True copy/