A.T.USMAN (DIED) Vs. K.K.SULEKHA

JUDGEMENT

(1.) The petitioners are the legal heirs of the first respondent in R.C.P.No.23 of 2012 on the file of the Rent Control Court, Ernakulam, a petition filed by respondents 1 to 5 herein for an order of eviction under sections 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as 'the Act' for short. The landlords had in the petition for eviction averred that the tenant has kept rent at the rate of 44,944/ - per mensem in arrears from January, 2011 and that they bonafide need the petition schedule building to start a business in textiles. It was also alleged that the tenants (respondents 1 and 2 in the rent control petition) had sublet the building to one Mohammed Ismail, who is running a hotel in the petition schedule building under the name and style 'Malabar Food Corner''.

(2.) Upon receipt of notice, the first respondent before the rent control court entered appearance and filed a counter statement contending interalia that the second respondent has retired from the partnership in January, 2011, that there has been no subletting and that Mohammed Ismail, the alleged sub lessee, is the manager of the hotel. He also contended that, at the time of entrustment the sum of 5,00,000/ - was paid as advance and after that the rent control petition was filed rent up to June, 2012 has been paid. He however admitted the fact that the rate of rent is 44,944/ - per mensem. He also denied and disputed the averment in the rent control petition that the landlords bonafide need the petition schedule building to start a business in textiles. The second respondent before the rent control court did not file a counter statement and he was set ex -parte.

(3.) Before the rent control court, the 5th petitioner in R.C.P.No.23 of 2012 was examined as PW1 and Exts.A1 to A7 were produced and marked. On the side of the tenants, the first respondent before the rent control court was examined as RW1 and Exts.B1 series of receipts were produced and marked. The rent control court after considering the rival contentions held that though the tenant did not deposit the arrears of rent within 15 days from the date of receipt of the notice as stipulated in section 11(2)(b) of the Act, and the landlord is entitled to an order of eviction, no purpose will be served by passing an order of eviction, in view of the fact that arrears of rent has since been paid and even if an order of eviction is passed, it can be got vacated under section 11(2)(c) of the Act. As regards the bonafide need, the rent control court held that the need put forward is bonafide. The contention of the tenant that the landlords have other buildings of their own was repelled on the ground that no evidence in that regard is forthcoming. The contention of the tenant that he is depending for his livelihood mainly on the income derived from the business carried on in the petition schedule building was repelled on the ground that he is a pensioner earning a monthly pension of 24,000/ -. The rent control court also held that as the tenant had admitted the presence of Mohammed Ismail in the petition schedule building, the burden is on him to explain the jural relationship and he has signally failed in that regard. Though the tenant had contended that Mohammed Ismail is only the manager of the hotel and he was being paid 10,000/ - per mensem as salary, no evidence in that regard was produced. The tenant did not also produce the wages register and muster roll or the license issued by the Cochin Corporation to run the hotel to show that the licence stands in his name and Mohammed Ismail is only an employee. The rent control court accordingly held that the tenant has sublet the petition schedule building to Mohammed Ismail. Consequently, an order of eviction under sections 11(3) and 11(4)(i) of the Act was passed on 23.07.2013. Challenging that order, the first respondent before the rent control court filed R.C.A.No.56 of 2013 on the file of the Rent Control Appellate Authority, Ernakulam. While the appeal was pending, he passed away and thereupon the petitioners herein were impleaded as supplemental appellants 2 to 4 as per order passed on 09.01.2015 in I.A.No.5907 of 2014. The appellate authority after considering the rival contentions dismissed the appeal by judgment delivered on 06.01.2016. The legal heirs of first respondent before the rent control court have, aggrieved thereby, filed this revision petition.