Pachan Venu vs Kammadan Haridasan on 18 February, 2022

[Cites 31, Cited by 0]

Kerala High Court

Pachan Venu vs Kammadan Haridasan on 18 February, 2022

The petitioner is the 1st respondent-tenant in R.C.P.No.219 of 2015 on the file of the Rent Control Court (Additional Munsiff-II), Kozhikode, a petition filed by the 1 st respondent herein-landlord under Sections 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking eviction of the tenant from the petition schedule building on the ground of arrears of rent, bona fide need and subletting. In the Rent Control Petition it is alleged that the tenant paid rent of the petition schedule building at the rate of Rs.70/- per day only up to 31.07.2014. The landlord require the petition schedule building for starting mobile phone business for his son. The tenant sublet the petition schedule building to the 2 nd respondent. Before the Rent Control Court, the tenant opposed the order of eviction sought for, by filing counter statement. The 2 nd respondent, the alleged sub-tenant, remained absent and he was set ex- parte. On the side of the landlord, PWs.1 and 2 were examined and Exts.A1 to A10 were marked. On the side of the tenant, he was examined as RW1. The document marked as R.C.Rev. No.211 of 2019 -4- Ext.B1 is the power of attorney produced by the tenant. The report and plan of the Advocate Commissioner were marked as Exts.C1 and C(1)(a) and he was examined as CW1. After considering the pleadings and evidence on record, the Rent Control Court, by the order dated 28.09.2017, allowed R.C.P.No.219 of 2015 ordering eviction under Sections 11(2)

(b) and 11(4)(i) of the Act and the tenant was directed to put the landlord in possession of the petition schedule building, within 60 days from the date of that order. The prayer for eviction under Section 11(3) was rejected. In the said order it was made clear that the order of eviction under Section 11(2)

(b) of the Act can be vacated under the provisions of Section 11(2)(c) of the Act. Challenging the order of eviction granted by the Rent Control Court under Sections 11(2)(b) and 11(4)

(i) of the Act, the tenant filed R.C.A.No.7 of 2018 before the Rent Control Appellate Authority (Addl. District Judge-II), Kozhikode. The landlord filed Cross Appeal in R.C.A.No.7 of 2018 challenging the rejection of the prayer for eviction under Section 11(3) of the Act. The Appellate Authority by the judgment dated 31.01.2019 dismissed R.C.A.No.7 of 2018 R.C.Rev. No.211 of 2019 -5- filed by the tenant, thereby confirming the order of eviction granted under Sections 11(2)(b) and 11(4)(i) of the Act. The Cross Appeal filed by the landlord was allowed, thereby setting aside the order rejecting the prayer for eviction under Section 11(3) of the Act, and the tenant was directed to put the landlord in possession of the petition schedule building. Feeling aggrieved by the order dated 28.09.2017 in R.C.P.No.219 of 2015 of the Rent Control Court (Additional Munsiff-II), Kozhikode and the judgment dated 31.01.2019 in R.C.A.No.7 of 2018 of the Rent Control Appellate Authority, Kozhikode, the tenant is before this Court in this Rent Control Revision, under Section 20 of the Act.

2. On 28.05.2019, when this Rent Control Revision came up for admission, this Court admitted the matter on file and issued notice to the respondents. In I.A.No.1 of 2019, this Court granted interim order staying all further proceedings in R.C.P.No.219 of 2015, for a period of three months.

3. On 17.09.2021, in I.A.No.1 of 2019, this Court revived and extended the interim order for a further period of three months, on condition that the petitioner-tenant shall pay R.C.Rev. No.211 of 2019 -6- arrears of rent, if any, within a period of one month and shall continue to pay rent for the subsequent period, without any default, during the pendency of the revision. On 12.01.2022 the learned counsel for the petitioner submitted that the petitioner could not comply with the conditions stipulated in the order of this Court dated 17.09.2021, since he was undergoing treatment for Covid-19. As requested by the learned counsel for the petitioner-tenant, the matter was listed to 21.01.2022 for disposal.

4. Heard the learned counsel for the petitioner-tenant and also the learned counsel for the 1st respondent-landlord. Despite service of notice, none appears for the 2 nd respondent, the alleged sub-tenant.

5. The issue that arises for consideration in this Rent Control Revision is as to whether any interference is warranted on the order of eviction granted by the Rent Control Court under Sections 11(2)(b) and 11(4)(i) of the Act in the order dated 28.09.2017 in R.C.P.No.219 of 2015, which stands confirmed by the judgment of the Rent Control Appellate Authority dated 31.01.2019 in R.C.A.No.7 of 2018 and the R.C.Rev. No.211 of 2019 -7- order of eviction granted by the Appellate Authority under Section 11(3) of the Act in the Cross Appeal in R.C.A.No.7 of 2018.

6. Section 11 of the Act deals with eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. Section 11(2)(b) of the Act deals with arrears of rent. As per Section 11(2)(b), if the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting the application thereof by him. As per the proviso to Section 11(2)(b), an application under R.C.Rev. No.211 of 2019 -8- this sub-section shall be made only if the landlord has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at six per cent per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the notice or of the refusal thereof. As per section 11(2)(c) the order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow; and if the tenant deposits the arrears of rent with interest and cost of proceedings within the said period of one month or such further period, as the case may be, it shall vacate that order.

7. Insofar as the order of eviction granted under Section 11(2)(b) of the Act is concerned, the petitioner-tenant has admitted in the counter filed in R.C.P.No.219 of 2015 that he had paid rent of the petition schedule building, only up to 31.07.2014. Even the subsequent payment of arrears made by the tenant was only on 02.03.2016. After considering the R.C.Rev. No.211 of 2019 -9- pleadings and evidence on record, the Rent Control Court arrived at a conclusion that the tenant has kept the rent in arrears and as such the landlord is entitled for an order of eviction under Section 11(2)(b) of the Act, which the tenant is entitled to get vacated by depositing the arrears of rent together with interest and cost, as provided under Section 11(2)(c) of the Act. The said finding of the Rent Control Court was rightly confirmed by the Appellate Authority in its judgment in R.C.A.No.7 of 2018. The reasoning of the Rent Control Court and the Appellate Authority in granting an order of eviction under Section 11(2)(b) of the Act is neither perverse nor patently illegal and it cannot be said that the authorities below have acted with material irregularity while ordering eviction of the tenant on the ground of arrears of rent.

8. As per Section 11(3) of the Act, a landlord may apply to the Rent Control Court, for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. As R.C.Rev. No.211 of 2019 -10- per the first proviso to Section 11(3), the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. As per the second proviso to Section 11(3), the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business.

9. In Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476] the Apex Court reiterated that, as laid down in Shiv Samp Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222] a bona fide requirement must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which R.C.Rev. No.211 of 2019 -11- would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. As reiterated in Deena Nath v. Pooran Lal [(2001) 5 SCC 705] bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire.

10. In Ammu v. Nafeesa [2015 (5) KHC 718] a Division Bench of this Court held that, it is a settled proposition of law that the need put forward by the landlord has to be examined on the presumption that the same is a genuine one, in the absence of any materials to the contra.

11. In the instant case, the bona fide need projected in the Rent Control Petition was that of PW1, the daughter of the landlord, to start a tailoring shop in the petition schedule R.C.Rev. No.211 of 2019 -12- building. In the order dated 28.09.2017 in R.C.P.No.219 of 2015, the Rent Control Court rejected the claim of the landlord for an order of eviction under Section 11(3) of the Act on a finding that the need projected by the landlord is not bona fide and it is only a ruse to evict the tenant from the petition schedule building. Insofar as the first proviso to Section 11(3) of the Act is concerned, the Rent Control Court found that the tenant failed to discharge his burden in showing that the landlord is in possession of any other rooms in the locality for the proposed business of PW1. Insofar as the second proviso to Section 11(3) of the Act is concerned, the Rent Control Court found that the tenant failed to prove that he is mainly depending upon the income derived from the business conducted in the petition schedule building for his livelihood. Though the finding of the Rent Control Court and the Appellate Authority on the first and second provisos to Section 11(3) was in favour of the landlord, in view of the finding that the need projected in the Rent Control Petition is not bona fide, but only a ruse to evict the tenant from the petition schedule building, the Rent Control Court rejected the claim of the R.C.Rev. No.211 of 2019 -13- landlord for an order of eviction under Section 11(3) of the Act.

12. The said finding of the Rent Control Court was reversed by the Appellate Authority in its judgment in R.C.A.No.7 of 2018 dated 31.01.2019. The Appellate Authority noticed that the son of the landlord, who was examined as PW2, has supported the case of the landlord, who was examined as PW1, for an order of eviction under Section 11(3) of the Act. After analysing the pleadings and evidence on record, the Appellate Authority found that the oral testimonies of PWs 1 and 2 are sufficient to establish the need projected in the Rent Control Petition to seek an order of eviction under Section 11(3) of the Act. The Appellate Authority noticed that, while considering the bona fide need of the landlord, the Rent Control Court went to the extent of analysing the suitability of the building for the purpose of starting a mobile phone business by PW2. Relying on the decision of this Court in Jerry Joseph v. Selvaraj [2002 (2) KLT 129], wherein it was held that the tenant cannot dictate the landlord regarding his need or choice of the building, the Appellate Authority R.C.Rev. No.211 of 2019 -14- found that the reasoning of the Rent Control Court to doubt the bona fides of the need projected in the Rent Control Petition cannot be sustained.

13. The aforesaid findings of the Appellate Authority in the judgment dated 31.01.2019 in R.C.A.No.7 of 2018 is neither perverse nor patently illegal and it cannot also be said that while arriving at such a finding, the Appellate Authority has committed any manifest error, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act.

14. As per the first proviso to Section 11(3), the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so.

15. In M.L. Prabhakar v. Rajiv Singal [(2001) 2 SCC 355] the Apex Court was dealing with a case in which eviction on the ground of bona fide requirement was sought for under Section 14(1)(e) of the Delhi Rent Control Act, 1958. R.C.Rev. No.211 of 2019 -15- In the said decision, the Apex Court relied on the law laid down in Ram Narain Arora v. Asha Rani [(1999) 1 SCC 141], wherein it was held that the question whether the landlord has any other reasonably suitable residential accommodation is a question which is intermixed with the question regarding bona fide requirement. Whether the landlord has any other reasonably suitable residential accommodation is a defence for the tenant. Whether the other accommodation is more suitable than the suit premises would not solely depend upon pleadings and non-disclosure by the landlord. The landlord having another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed materials before the court and case of neither party was prejudiced. On the facts of the case on hand, the Apex Court found that, even though the landlord has not mentioned about the other two premises, the material in respect of the other two premises was placed before the Rent Controller as well as before the High Court, thus no prejudice has been caused, and the parties have squarely dealt with this question.

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16. In Vasantha Mallan v. N.S. Aboobacker Siddique [2020 (1) KHC 21] the question that arose before a Division Bench of this Court was whether a landlord is bound to plead under first proviso to Section 11(3) of the Act, the availability of vacant building in his possession and seek to explain special reason for non-occupation of such premises, in a proceeding initiated for eviction of the tenant under Section 11(3) of the Act. The Division Bench held that the initial burden to prove that landlord is in possession of vacant building, if any, is only upon the tenant unless the landlord himself admits any such vacant building to be in his possession. Only when the primary burden of proof in this behalf is discharged by the tenant, the burden shifts to the landlord to show otherwise or that the vacant premises are not suited to his needs. He can successfully discharge his part of the burden by adducing evidence either through his own testimony or others or in any other legal manner. Law does not require the landlord to plead that he is in possession of any vacant building and has special reasons for its non- occupation. It is up to the tenant alone to take up the R.C.Rev. No.211 of 2019 -17- contention and prove that landlord is in vacant possession of premises.

17. In Vasantha Mallan, relying on the law laid down by the Apex Court in M.L. Prabhakar [(2001) 2 SCC 355] the Division Bench held that, it is not incumbent on the landlord to disclose in his pleading availability of vacant building in his possession. The non-disclosure of vacant premises cannot be picked up as a reason or circumstance to doubt the bona fides of the claim of the landlord put forward under Section 11(3) of the Act. The Division Bench made it clear that it is not obligatory for the landlord to disclose in his pleadings the details of the vacant buildings available in his possession. Nor does first proviso to Section 11(3) of the Act insist the landlord to plead that the buildings available in his possession are not sufficient to meet his requirements. These are matters of evidence rather than pleadings. Failure of the landlord to disclose availability of buildings in his possession and plead special reasons for not occupying them, cannot be taken as a valid and legal ground for rejecting the claim of the landlord as not bona fide. What could at the most be said is R.C.Rev. No.211 of 2019 -18- that it might be a fair and reasonable conduct if the landlord disclosed in his pleadings the details of buildings in his possession and simultaneously explained the reason for non- occupation of the premises for his alleged needs.

18. Insofar as the first proviso to Section 11(3) of the Act is concerned, the Rent Control Court has found in its order dated 28.09.2017 in R.C.P.no.219 of 2015 that the tenant failed to prove the applicability of the said proviso. The Appellate Authority in its judgment in R.C.A.No.7 of 2018 noticed that no evidence is forthcoming from the side of the tenant to show that the landlord is having vacant possession of any other building in the locality. PW1 has pointed out that out of 18 rooms in the shopping complex owned by him, two rooms were sold and 16 rooms are in the possession of the tenants. The said fact is evidence from Ext.C1 commission report, as rightly noticed by the Appellate Authority. After considering the pleadings and evidence on record, the Appellate Authority confirmed the finding of the Rent Control Court that the first proviso to Section 11(3) of the Act has no application in the facts and circumstances of the case on hand. R.C.Rev. No.211 of 2019 -19- The finding of the Rent Control Court and the Appellate Authority on the first proviso to Section 11(3) of the Act is neither perverse nor patently illegal and it cannot also be said that while arriving at such a finding, the authorities below have committed any manifest error, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act.

19. As per the second proviso to Section 11(3) of the Act, the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business.

20. In Ammeer Hamsa v. Ramabhadran and another [2019 (2) KHC 465] a Division Bench of this Court held that, it is trite law that both limbs under the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act are conjunctive and the burden of proof is on the tenant. Thus, the legal position has been settled by a long R.C.Rev. No.211 of 2019 -20- line of decisions and the courts below have rightly placed reliance upon those decisions. Vide: Narayanan Nair v. Pachumma [1980 KLT 430], Prasannan v. Haris [2005 (2) KLT 365], Vineethan v. Fathima and others [2016 (1) KHC 631]. In view of the legal position well settled by the aforesaid decisions, the landlord is not required to plead or prove other sources of income of the tenant. That apart, income is a fact which remains exclusively in the knowledge of each person only and another person cannot adduce evidence to prove income. Merely on the reason that the landlord has stated that the tenant has other sources of income and he is not mainly depending upon the income from the business carried on in the tenanted premises, for his livelihood and he failed to prove so, the tenant cannot escape from the burden of proof cast on him under the first limb of the second proviso to Section 11(3) of the Act. Where the statutory provision itself explicitly imposes the burden of proof on a party to the lis, there cannot be any variation whatever be the pleadings of the other party in that respect. The second proviso to Section 11(3) is an exception to the principal provision, granting R.C.Rev. No.211 of 2019 -21- protection to the tenant. When the second proviso itself imposes the burden of proof on the tenant, the question whether the landlord has pleaded or proved the facts constituting the said proviso is insignificant and irrelevant. Even if the landlord pleaded so, the burden of proof will not be shifted to him. Since the second proviso to Section 11(3) is an exception to the principal provision, which would dis-entitle the landlord to get the order of eviction under Section 11(3), the burden of proof, under the said proviso is always on the tenant and unless the burden of proof under the second proviso is discharged satisfactorily, the tenant is not entitled to get protection under the said proviso to Section 11(3) of the Act.

21. Insofar as the second proviso to Section 11(3) of the Act is concerned, the Rent Control Court and the Appellate Authority concurrently found that the tenant is not entitled to the protection under the said proviso. In the judgment in R.C.A.No.7 of 2018, the Appellate Authority noticed that, as reported by the Advocate Commissioner in Ext.C1 report, vacant rooms are available in the locality. The tenant has not R.C.Rev. No.211 of 2019 -22- let in any evidence to prove that vacant rooms available in the locality are not suitable for his business. The tenant was working abroad for quite a long time and as such it can easily be concluded that he is not mainly depending upon the income derived from the business conducted in the petition schedule building for his livelihood. The tenant has also not discharged his initial burden in proving the said fact, in order to attract the second proviso to Section 11(3) of the Act. After considering the pleadings and evidence on record, the Appellate Authority rightly confirmed the finding of the Rent Control Court on the second proviso to Section 11(3) of the Act. The finding of the Rent Control Court and the Appellate Authority on the first proviso to Section 11(3) of the Act is neither perverse nor patently illegal and it cannot also be said that while arriving at such a finding, the authorities below have committed any manifest error, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act.

22. Section 11(4)(i) of the Act deals with subletting. As per Section 11(4) a landlord may apply to the Rent Control R.C.Rev. No.211 of 2019 -23- Court for an order directing the tenant to put the landlord in possession of the building; (i) if the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sublets the entire building or any portion thereof if the lease does not confer on him any right to do so; provided that an application under this clause shall not be made for the first time in respect of one and the same tenancy unless the landlord has sent a registered notice to the tenant intimating the contravention of the said condition of the lease and the tenant has failed to terminate the transfer or the sub-lease, as the case may be, within thirty days of the receipt of the notice or the refusal thereof. As per the explanation to Section 11(4)(i), where on the partition of a joint family or of the rights of co- tenants, or on the dissolution of a firm, the right of the joint family or the co-tenants or the firm under a lease is vested in a member of the joint family, or a co-tenant or a partner, as the case may be, whether by act of parties or otherwise, no transfer by the tenant of his right under the lease shall be deemed to have taken place within the meaning of this clause. R.C.Rev. No.211 of 2019 -24-

23. In Bharath Sales Ltd. v. Life Insurance Corporation of India [(1998) 3 SCC 1] the Apex Court held that sub tenancy or subletting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by R.C.Rev. No.211 of 2019 -25- direct evidence, the contract or agreement or understanding between the tenant and the sub tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sublet had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump-sum in advance covering the period for which the premises is let out or sublet or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sublet.

24. In Unni Vacco v. Thankamma Gregory [2003 (2) KLT 459] a Division Bench of this Court held that, it is true that with regard to the question of sub-lease, there should be an exclusive possession by the alleged sub-lessee. R.C.Rev. No.211 of 2019 -26- But as stated in many cases, the transaction is between the lessee and sub-lessee. When a person other than the tenant is found to be in the building, the burden is on the tenant to show that there is no sub-lease or transfer of possession. On the facts of the case on hand, the Division Bench found 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, 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. 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 Division Bench noticed that the evidence of RW1, the Secretary of Kerala High Court Bar Association also shows that the second respondent is conducting a hotel in his own name.

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25. In Jacob v. Pradeep Naik [2009 (2) KHC 53] a Division Bench of this Court held that in order to establish a ground for eviction under Section 11(4)(i) of the Act it is not necessary to show that exclusive possession of the tenanted building has been unauthorisedly transferred to the alleged sub-lessee and also to establish that there is landlord tenant relationship between the tenant and the alleged sub-lessee. A careful reading of Section 11(4)(i) will show that what is made objectionable and a ground for eviction under that sub-section is transfer of the tenant's rights under the lease without the consent of the landlord or subletting of the entire building or any portion thereof unless authorised in that regard by the terms of the lease. The ingredients of unauthorised subletting and transfer of tenant's rights under the lease necessary under Section 11(4)(i) are in the alternative and are not cumulative. Subletting being a clandestine arrangement between the tenant and the sub tenant the terms which will be known of them only, if it were to be insisted that the landlord will have to establish a landlord-tenant relationship between the tenant and the sub-tenant, for succeeding in a petition R.C.Rev. No.211 of 2019 -28- wherein the ground under Section 11(4)(i) is invoked, the task of the landlord will be extremely difficult. This is why the Legislature has provided the ingredients of the sub-section in the alternative. Here again, it is not necessary that the transfer of the tenant's rights under the lease should be in respect of the entire building. It is sufficient that the tenant transfers his rights under the lease in respect of a portion of the building. The most important right under the lease from the tenant's point of view is the right to possess and enjoy the building. This is why transfer of possession of the building is always understood in the context of the ground under Section 11(4)(i) as transfer of right under the lease entailing liability for eviction of the tenant if such transfer is unauthorised.

26. In Celina Coelho Pereira v. Ulhas Mahabales- hwar Kholkar [(2010) 1 SCC 217] the Apex Court summarised the legal position regarding the essence of sub- letting, mode of its proof and onus of proof, as follows;

"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 R.C.Rev. No.211 of 2019 -29- 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 on the landlord but once he is able to establish that a third party is in exclusive possession of the premises and R.C.Rev. No.211 of 2019 -30- 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."

27. In Celina Coelho Pereira the Apex Court held that if the purpose of constituting partnership by the tenant is ostensible and a deed of partnership is drawn to conceal the real transaction of subletting in a given case, the court may be required to tear the veil of partnership to find out the real nature of transaction entered into by the tenant and in such circumstances the evidence let in by the landlord cannot be ignored on the ground that there is some variance between pleading and proof. In such a case the rule of secundum allegata et probata is not strictly applicable as the tenant cannot be said to have been put to any prejudice.

28. In Usman K.S. v. Vidyavathi @ Vidya Kalesan [2014 (1) KHC 830] a Division Bench of this Court R.C.Rev. No.211 of 2019 -31- held that, as held by the Apex Court in Celina Coelho Pereira, 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. On the facts of the case on hand, the Division Bench found that, parting with possession of the tenanted premises is well proved. 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 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". The Division Bench held that, 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 R.C.Rev. No.211 of 2019 -32- notice of the landlord. On a perusal of the case records, the Division Bench could not find anything 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. The Division Bench observed that, in normal circumstances two persons cannot 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 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, R.C.Rev. No.211 of 2019 -33- 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. Therefore, the Division Bench found that the two authorities below have come to the right finding under Section 11(4)(i) of the Act, and accordingly confirmed the said finding.

29. The Rent Control Court as well as the Appellate Authority concurrently found that the tenant had sublet the petition schedule building to the 2nd respondent herein, the alleged sub-tenant. The stand taken by the tenant before the Rent Control Court as well as the Appellate Authority is that the 2nd respondent is one of his relatives, who is helping the wife and mother of the tenant to conduct business in the petition schedule building. The tenant, who was examined as RW1 has deposed that he went abroad in search of a job and having found no permanent job returned to native place and he is in the home land for the past 13 months prior to the date of his examination. RW1 deposed that in his absence, his wife R.C.Rev. No.211 of 2019 -34- and mother were conducting the business in the petition schedule building and the 2nd respondent was in fact helping them. RW1 has deposed that the 2nd respondent was a worker under him. Therefore, the tenant was not having a consistent case as to whether the 2nd respondent is a helper or worker under him. The Advocate Commissioner, who inspected the petition schedule building for the first time, found the 2 nd respondent in charge of the business, who received notice given by the Commissioner. Ext.A6 notice was also received by the 2nd respondent, which is one issued by the landlord for compliance of the provisions under Section 11(4)(i) of the Act. The landlord had earlier sent Ext.A2 notice seeking enhancement of rent and thereafter filed R.C.P.No.55 of 2015. Ext.A3 is the envelope containing Ext.A2 notice addressed to the tenant in the address of the petition schedule building. Ext.A3 contains an endorsement made by the postal authorities that 'addressees left India'. Therefore the Appellate Authority rightly concluded that, as on the date of Ext.A3, i.e., 20.02.2015, the 1st respondent tenant was working abroad. The tenant as RW1 had admitted that he was working abroad R.C.Rev. No.211 of 2019 -35- for quite a long, who went to Gulf four years before. After one year he had come back and later returned to Gulf. Though RW1 deposed that he can produce documents to show that he went to Gulf as a job seeker, no such materials were placed before the Rent Control Court. After considering the materials on record, the Appellate Authority confirmed the finding of the Rent Control Court that the tenant had sublet the petition schedule building to the 2nd respondent and as such the landlord is entitled to an order of eviction under Section 11(4)

(i) of the Act. The reasoning of the Appellate Authority in confirming the findings of the Rent Control Court on the ground of eviction sought for under Section 11(4)(i) of the Act is neither perverse nor patently illegal and it cannot also be said that while arriving at such a finding, the Appellate Authority has committed any manifest error, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act.

30. Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 deals with revision. As per sub-section (1) of Section 20, in cases, where the appellate authority R.C.Rev. No.211 of 2019 -36- empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per sub-section (2) of Section 20 of the Act, the costs of and incident to all proceedings before the High Court or District Court under sub- section (1) shall be in its discretion.

31. In Rukmini Amma Saradamma v. Kallyani Sulochana [(1993) 1 SCC 499], the scope of revisional powers of the High Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re- appreciated entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. R.C.Rev. No.211 of 2019 -37- Otherwise, the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word 'propriety' it cannot mean that there could be a re-appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it.

32. In T. Sivasubramaniam v. Kasinath Pujari [(1999) 7 SCC 275] the Apex Court held that, the words 'to satisfy itself' employed in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High Court under Section 25 of the Act is not an appellate power to R.C.Rev. No.211 of 2019 -38- reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below.

33. In Ubaiba v. Damodaran [(1999) 5 SCC 645] the Apex Court considered the exercise of revisional power by the High Court, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. Relying on the decision in Rukmini Amma Saradamma it was contended that, however wide the jurisdiction of the revisional court under Section 20 of the Act may be, it cannot have jurisdiction to re-appreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority. The Apex Court held that, though the revisional power under Section 20 of the Act may be wider than Section 115 of the Code of Civil Procedure, 1908 it cannot be equated even with the second appellate R.C.Rev. No.211 of 2019 -39- power conferred on the civil court under the Code. Therefore, notwithstanding the use of the expression 'propriety' in Section 20 of the Act, the revisional court will not be entitled to re-appreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by re-appreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist.

34. In Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78] a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in Rukmini Amma Saradamma the Apex Court reiterated that even the wider language of Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 does not enable the High Court to act as a first or a second court of appeal. The Constitution Bench agreed with the view of the Three-Judge Bench in Rukmini R.C.Rev. No.211 of 2019 -40- Amma Saradamma that the word 'propriety' does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it.

35. In Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412] considering the matter in the backdrop of law laid down in Rukmini Amma Saradamma, Ubaiba and Dilbahar Singh the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said to be perverse in any way. The High Court could not have re- appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction.

36. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be said that the order of eviction passed by the Rent Control Court under Section 11(2)

(b) and 11(4)(i) of the Act, which now stands confirmed by the Appellate Authority, and also the order of eviction granted R.C.Rev. No.211 of 2019 -41- by the Appellate Authority under Section 11(3) of the Act is either perverse or patently illegal or it suffers from any legal infirmity warranting interference under Section 20 of the Act. Therefore, we find no reasons to interfere with the order of eviction granted by the authorities below.

37. The learned counsel for the petitioner-tenant would submit that considering the situation prevailing in the country on account of Covid-19 pandemic, the tenant may be given six months time to give vacant possession of the petition schedule building.

38. On the above request made by the learned counsel for the petitioner-tenant, the learned counsel for the respondent-landlord would submit that a reasonable period of three months may be granted to the tenant for giving vacant possession of the petition schedule building, on condition that the tenant shall clear the entire dues towards arrears of rent and continue to pay the monthly rent for the remaining period, without any default.

39. The learned counsel for the tenant would submit that the tenant is prepared to clear the entire dues towards R.C.Rev. No.211 of 2019 -42- arrears of rent, within a time limit that may be fixed by this Court and he shall continue to pay the monthly rent for the remaining period, without any default, till he gives vacant possession of the petition schedule building to the landlord.

40. In such circumstances, this Rent Control Revision is dismissed declining interference on the order of eviction granted by the Rent Control Court under Section 11(2)(b) and 11(4)(i) of the Act and that granted by the Rent Control Appellate Authority under Section 11(3) of the Act; however by granting four months time to the petitioner-tenant, to surrender vacant possession of the petition schedule building to the respondent-landlord, considering the situation prevailing in the country on account of Covid-19 pandemic, subject to the following conditions:

(i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that he will surrender vacant possession of the petition schedule building to the petitioner-landlord within four months from the date of this order and that, he shall not induct third R.C.Rev. No.211 of 2019 -43- parties into possession of the petition schedule building;

(ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding month, without any default;

(iii) Needless to say that, in the event of the respondent-tenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule building will stand cancelled automatically and the petitioner-landlord will be at liberty to proceed with the execution of the order of eviction.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE bkn/-

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