K.RAMESH Vs. P.K.MOIDEEN KOYA

JUDGEMENT

(1.) The tenant in revision challenged the concurrent findings of both the Rent Control Court and the Rent Control Appellate Authority in granting eviction under Sections 11(4)(i) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short "the Act"). Originally, the petition was filed under Sections 11(2)(b), 11 (4)(i) and 11(8) of the Act. After the first round of litigation, based on the remand of the matter by this Court in RCR No.425/2011, the matter was again came up before the Rent Control Court wherein an order of eviction under Sections 11(4)(i) and 11(8) of the Act was passed, which was taken up in first appeal, wherein it was confirmed. Aggrieved by the said order, the present revision is filed by the tenant.

(2.) The main challenge raised by the tenant is that the order passed under Section 11(4)(i) of the Act does not reflect proper consideration of the evidence involved in the case as well as the legal position settled. It was submitted that no sufficient evidence was brought out by the landlord in order to show the alleged sublease in between the first and second respondents in the Rent Control Petition. The 1st respondent is the original tenant and the 2nd respondent is the alleged subtenant. But, it is admitted that they have received Ext.A2 notice, stating the alleged sublease, issued by the landlord to which a reply notice was issued denying the entire allegations including the sublease. An ex parte commission was issued on initiation of the rent control proceedings, who, in turn, visited the property at 1.30 p.m. and found the presence of the son of the 2nd respondent herein in the shop room. At that time, the tenant was not there. An explanation was offered at the time of evidence that an ex parte commission had visited the petition schedule premises, at the time of lunch break. But the presence of the son of the 2nd respondent alone in the petition schedule premises and the absence of the tenant were not properly explained. At the first opportunity, they opted to issue reply notice, Ext.A6, denying the allegation of sublease with the 2nd respondent.

(3.) As far as sublease is concerned, it may be a transaction in between a lessee and a sub-lessee. It may not be discernible or known to others including the landlord and, in such a situation, it may be very difficult for the landlord to establish the transfer of leasehold right and induction of strangers into exclusive possession of the tenanted premises. The fact that the 2nd respondent's son alone was found in the shop room at the time of visit of the Commissioner would bring the matter within the purview of Section 11(4)(i) of the Act unless there is sufficient and acceptable explanation for the presence of a stranger in the shop room. The burden lies on the tenant to show under what circumstance the 2nd respondent's son came into occupation of the tenanted premises at the time of visit of the Commissioner or whether he is an employee attached to the business carried on in the premises by the tenant. For that purpose no scrap of paper was produced by the tenant except some documents which, according to the landlord, were created after the visit of the Commissioner and initiation of rent control proceedings and those documents including Exts.B31 a letter issued by the LIC in the year 2008 and Ext.B18 loan collection book of a Co-operative Society showing the payment of loan amount in the address of the tenanted premises were rightly negatived by both the Rent Control Court and the Rent Control Appellate Authority on the reason that all the documents except Exts.B31 and B18 are created subsequent to the Rent Control Petition and so far as Exts.B31 and B18 are concerned, these are the notice and the passbook issued showing the earlier address of the original tenant. In fact, there is no sufficient evidence to show that as on the date of visit of the Commissioner how the son of the 2nd respondent was came into occupation of the tenanted premises.