RAMAMOORTHY RAO Vs. MUSTHAPHA RAWTHER

JUDGEMENT

(1.) THIS revision petition is filed by the landlords against the order of the Rent Control Appellate Authority reversing and setting aside an order of eviction passed by the Rent Control Court under S. 11 (4) (i)and 11 (4) (iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' ). The petitioners are brothers and they are the joint owners of the petition schedule shop room. The respondent tenant was doing stationery business in the shop room in the name of 'kerala stationeries'. It is the case of the petitioners that from January 1989 onwards, respondent was not seen in the shop and one M. G. Gopakumar (RW2) was doing the business therein. On 4. 5. 1989, they received a cheque (Ext. A2)towards rent issued by the said Gopakumar. The first revision petitioner asked gopakumar why he has issued the cheque. He answered that he purchased the shop room from the respondent. Thereafter, petitioners made enquiries and learnt that respondent/ tenant published an advertisement (Ext. A3) in widely circulated Malayalam daily for selling his shop. Therefore, Ext. A4 lawyer notice was issued on 28. 6. 1989 terminating the lease on account of subletting the property. Ext. A5 is the reply denying the allegations.

(2.) PETITION for eviction was filed under S. 11 (2) (b) (arrears of rent); 11 (4) (i) (sublease); and 11 (4) (iii) (tenant has other suitable building ). PETITIONers had a case that respondent/ tenant had other three shop rooms named 'sylviya', 'supriya' and 'fancy Shoe Mart'. According to the respondent/ tenant, he has not transferred the exclusive possession of the building. Even though it was admitted that Ext. A3 advertisement of sale of the shop was published, according to him, it was not fruitful. He is doing the business in partnership with RW2 Gopakumar. Ext. B5 is the deed of partnership. Respondent has no other suitable building. 'sylviya' is rented out to his son s. M. Akbar. 'supriya' also belongs to his son S. M. Akbar. 'fancy Shoe Mart' is rented out by his wife P. A. Saithoon.

(3.) IT is well-settled law that for eviction under s. 11 (4) (i), tenant should part with exclusive possession of the whole or part of the tenanted premises for consideration without obtaining consent of the landlord and it is for the landlord to prove that the tenant has transferred exclusive possession of the whole or part of the tenanted building. IT is equally well settled that if the tenant forms a partnership with another or others and carries on his business, it cannot be stated that there is exclusive transfer of possession. But, at the same time, if the partnership is sham and real purpose is subletting, the disguised partnership deed is not to be looked into. In such case there is no genuine partnership despite legal devices to camouflage the subletting. While interpreting similar provision which enabled the landlord to seek eviction if the premises is sublet after 1992 in the Delhi rent Control Act, the Supreme Court in G. K. Bhatnagar (D) by LRs v. Abdul Alim ut 2002 (Suppl.) SC 155), it was held as follows: it subletting, assigning or otherwise parting with the possession of the whole or any part of the tenancy premises without obtaining the consent in writing of the landlord is not permitted and if done the same provides a ground for eviction of the tenant by the landlord. However, inducting a partner in his business or profession by the tenant is permitted so long as such partnership is genuine. If the purpose of such partnership may ostensibly be to carry on the business or profession in partnership, but the real purpose be subletting of the premises to such other person who is inducted ostensibly as a partner, then the same shall be deemed to be an act of subletting.