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2009 DIGILAW 330 (KER)

Varghese G. Paul v. T. I. Korath

2009-04-01

C.K.ABDUL REHIM, PIUS C.KURIAKOSE

body2009
Judgment : Pius C. Kuriakose, J. The tenant has filed this Revision Petition under S.20 of Act 2 of 1965 challenging the order of eviction passed under cl. (i) of sub-s.4 of S.11 i.e., the ground of sub lease. The respondent landlord had sought for eviction under sub-s.3 of S.11 also. But eviction on that ground was refused by the Rent Control Court and also by the appellate authority. Therefore in this revision we are concerned only with the correctness of the order of eviction concurrently passed under cl. (i) of sub-s.4 of S. 11. 2. We heard the submissions of Sri B. Premnath, learned counsel for the revision petitioner and Sri V.K. Isaac learned counsel for the respondent. We have gone through the records which are available. Sri. Premnath would draw our attention at the very outset to the finding of the Rent Control Court in the context of the second proviso to sub-s.(3) of S. 11. He points out that it is clearly found by the Rent Control Court that the revision petitioner/tenant is depending mainly on the income which he derives from the business carried on by him in the petition schedule building for his livelihood. He submitted that the said finding has not been set aside by the Rent Control Appellate Authority. According to him, in the teeth of that finding the present finding of the authorities that the premises has been sublet by the revision petitioner to the second respondent in the R.C.P. is inherently and absolutely incorrect. He also submitted that oral partnerships are not tabooed in law. In as much as the Rent Control Petition was instituted not by the revision petitioner, S.69 of the Indian PartnershipAct which insists on the registration of partnership for the purpose of institution of cases, will not apply. Sri V.K. Isaac, learned counsel for the respondent/landlord submitted that Rent Control Appellate Authority has clearly expressed disagreement with the findings of the Rent Control Court that the revision petitioner is depending mainly on the income derived from the petition schedule building. The omission to vacate the finding entered by the Rent Control Court under the second proviso to S. 11(3) was due to inadvertence of the Appellate Authority. According to the learned counsel, at any rate, the above finding can relate only to the rental income derived by the revision petitioner from the building viz. The omission to vacate the finding entered by the Rent Control Court under the second proviso to S. 11(3) was due to inadvertence of the Appellate Authority. According to the learned counsel, at any rate, the above finding can relate only to the rental income derived by the revision petitioner from the building viz. the rent received by him from the alleged sub lessee. 3. We have considered the rival submissions addressed at the bar in the light of the evidence which was available before the Rent Control Court. The building in question was let out to the revision petitioner for conducting business in wooden furniture and wooden curios. The said business is admittedly not being carried on either now or at the time when Ext.A2 statutory intimation notice under S. 11(4)(i) was issued to the tenant. The premises are admittedly used now and at the time of Ext.A2 for the conduct of a telephone booth. Exs.X 1 to X6 documents produced on summons at the instance of the landlord will show that on the basis of an application submitted by the alleged sub lessee, he has been granted licence for conduct of telephone booth by the department of Telephones. Significantly it is stated by the alleged sub lessee in the application that he was permitted by the revision petitioner tenant to occupy the building and to conduct a telephone booth. These documents thus clearly show that the alleged sub lessee was inducted into the petition schedule building by the revision petitioner/ tenant and not by the landlord. The defence which was raised by the revision petitioner in answer to the allegation of sub lease was that the alleged sub lessee is his partner on the strength of an oral partnership. It may be true that there is no taboo for oral partnership in law. Even if it is accepted that S.69 will not apply in this case, the question is whether the oral partnership set up by the revision petitioner has been established. We do not find even a scintilla of evidence to support the case of oral partnership raised by the revision petitioner through his statement of objections filed in the R.C.P. 4. Even if it is accepted that S.69 will not apply in this case, the question is whether the oral partnership set up by the revision petitioner has been established. We do not find even a scintilla of evidence to support the case of oral partnership raised by the revision petitioner through his statement of objections filed in the R.C.P. 4. Learned counsel for the revision petitioner is correct in his submission that the Rent Control Court has even as it was passing an order of eviction on the ground under S.11 (4)(i) found that the tenant/ revision petitioner is entitled to protection to the second proviso to sub-s.(3) of S.11. We have gone through the findings of the Rent Control Court in that context. We are constrained to observe that it was in a casual manner that the Rent Control Court considered the question of tenant's eligibility for protection of the 2nd proviso under S.11(3). It was argued before the appellate authority by the revision petitioner that since there was no appeal against the findings of the Rent Control Court in the context of second proviso to S.11(3), that finding is not open to challenge at the instance of the landlord. The above argument was rightly repelled by the Rent Control Appellate Authority. We are in agreement with the Appellate Authority which has observed that in as much as the ultimate decision of the Rent Control Court was in favour of the landlord, the landlord could have assailed these findings in the Rent Control Court's order which were against him, even without filing separate appeal or cross objections. We find that the Rent Control Appellate Authority has independently analysed the evidence of the parties in the context of the 2nd proviso to S.11(3) and has very clearly found that no evidence whatsoever has been adduced by the tenant to prove as to what if any is the income he is deriving from the petition schedule building. Of course the Appellate Authority does not specifically vacate the finding of the Rent Control Court regarding the tenant's eligibility for the protection of second proviso to S.11(3). According to us, the failure of the Appellate Authority to vacate that the finding is the result of an inadvertent omission. Of course the Appellate Authority does not specifically vacate the finding of the Rent Control Court regarding the tenant's eligibility for the protection of second proviso to S.11(3). According to us, the failure of the Appellate Authority to vacate that the finding is the result of an inadvertent omission. We agree with the Rent Control Appellate Authority and hold that the tenant has not succeeded in establishing that the tenant is entitled to the protection under the second proviso to S.11(3). Even though the argument of the learned counsel for the landlord that the tenant is mainly depending on the income derived from the petition schedule building by way of rent paid by his sub tenant is interesting, we are unable to accept this argument. The first ingredient of second proviso to sub-s.(3) of S.11 is that the tenant should be depending for his livelihood mainly on the income derived from any trade or business carried on in such building. What has happened in this case is that the tenant has parted with possession of the petition schedule building in favour of the alleged sub lessee. The tenant is no longer in possession of the building. The act of parting with possession and induction of the alleged sub lessee into the building cannot be construed as trade, or business for the purpose of second proviso to sub-s. (3) of S.11. True the revision petitioner/tenant may be deriving income by way of rent from the sub tenant. But according to us such income is the rental income which he derives every month on account of his initial act of transfer and sublease and not any income from "business or trade carried on" in the building. On a careful reading of the 2nd proviso to sub-s.(3) it becomes clear and it is settled by precedents (though in the context of burden of proof regarding the eligibility for its protection) that the two ingredients are in the conjunctive. The 2nd ingredient of the proviso is concerned with the availability of buildings suitable for the conduct of the trade or business carried on in the building. The trade or business in the context of the first ingredient of the 2nd proviso therefore has to be a trade or business actually carried on by a tenant who retains possession of the building. 5. The trade or business in the context of the first ingredient of the 2nd proviso therefore has to be a trade or business actually carried on by a tenant who retains possession of the building. 5. The result therefore is that the order of eviction passed under S.11(4)(i) is confirmed. We do not find any good reason for granting time to the tenant who has sublet the premises to vacate the premises. However, in view of the request of Sri.B .Premnath, learned counsel for the petitioner, we are inclined to grant time till First August, 2009 subject to the following conditions. The revision petitioner shall pay to the respondent/landlord either directly or through his counsel in this Court within one month from today the rent at the rate of Rs. 1325/-per mensum which fall due in respect of the building from the date of filing of the R.C.P. till date less any amount paid by the revision petitioner during the pendency of the Rent Control proceedings and he will also file an affidavit before the Rent Control Court stating that he will facilitate peaceful surrender of the premises in favour of the respondent/landlord on or before 1.8.2009. The C.R.P. is dismissed. But in the circumstances, no order as to costs.