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2010 DIGILAW 560 (KER)

P. A. Abdul Kareem v. Pokkinnari Hashim

2010-07-22

C.K.ABDUL REHIM, PIUS C.KURIAKOSE

body2010
Judgment : Pius C. Kuriakose Under challenge in this revision filed under Section 20 by the tenant is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed against him by the Rent Control Court on the grounds of arrears of rent and subletting. The learned counsel for the revision petitioner Sri. T.M. Abdul Latiff submitted that the revision petitioner is not seriously aggrieved by the order of eviction passed under section 11(2) and it will suffice if this Court grants six weeks time to the revision petitioner for getting that order vacated by filling necessary application under Section 11(2)(c). In view of the above stand, we need be concerned only with the correctness of order of eviction passed under Section 11(4)(i). In fact on 5-2-2009 when this court considered this case for admission elaborate submissions were addressed by Sri. T.M. Abdul Latiff before us and we became inclined to issue notice only on the question whether the rent control petition was liable to fail for want of the statutory notice under the proviso to Section 11 (4)(i). Even though Sri. Abdul Latiff argued before us on the merits of the allegations regarding sublease, we feel that in view of the order passed by this Court on 5-2-2009, it is sufficient that we consider the question of maintainability of the rent control petition in the context of issuance or otherwise of statutory notice under Section 11 (4)(i) proviso. 2. Ext.A1 is the notice that is relied on by the landlord for maintaining the RCP. On going through Ext.A1 it is clear that the contents therein intimates the tenant of the alleged contravention of the terms of the lease and subletting/transfer of possession of the premises unauthorisedly. It has become evident in the case that Ext.A1 notice was sent by registered post. The statutory authorities have concurrently found that Ext.A1 was addressed correctly to the tenant as the tenant’s address shown in Ext.A1 and his address shown in the lease deed is substantially the same. 3. It has become evident in the case that Ext.A1 notice was sent by registered post. The statutory authorities have concurrently found that Ext.A1 was addressed correctly to the tenant as the tenant’s address shown in Ext.A1 and his address shown in the lease deed is substantially the same. 3. The proviso to Section 11(4)(i) reads as follows: “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.” It is thus clear that Ext.A1 is a notice as required by the proviso and was sent to the tenant in the manner required by the proviso. Whether that will satisfy the statutory requirement is the question. The proviso shows that to maintain an RCP the tenant should have received 30 days time for terminating the alleged sublease from the date of receipt of the notice or the date of refusal of the notice. Ext.A1 evidently was not received by the tenant. It is not urged that the tenant refused to receive Ext.A1. What is urged is that the tenant evaded receiving of Ext.A1 and that amounts to refusal. The suggestions in the cross examination of the tenant was that the postman was won over and a false endorsement “no such addressee” could be got made on the cover containing the original of Ext.A1. Even though the statute refers to actual service or refusal only, it is clear to our mind that if there is evidence to hold that a subletting tenant has deliberately evaded receiving the statutory notice, then also the same will amount to refusal of the notice, thus satisfying the requirements of the proviso. The question before us is whether we can on the available evidence hold that the tenant evaded receiving Ext.A1. 4. Section 27 of the General Clauses Act reads as follows: “27. The question before us is whether we can on the available evidence hold that the tenant evaded receiving Ext.A1. 4. Section 27 of the General Clauses Act reads as follows: “27. Meaning of service by post-- Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression “serve” or either of the expressions “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.” We do not think that in this case we will be justified in applying the principles underlying Section 27 and taking the view that the burden is on the tenant to prove that Ext.A1 was not served on him. This is because there is an endorsement by the postman on the original of Ext.A1 to the effect that there was no person in that address available and hence he is becoming obliged to return the article. There may be instances where the postman make an incorrect endorsement at the behest of a tenant. But so long as the presumptions under Section 114(e) of the evidence Act are applicable regarding the correctness of the endorsement made on the cover, in the teeth of the endorsement by the postman that there was no such addressee when the article was taken to the premises, it was the landlord who was having the burden to rebut the presumption by cross examining the postman and prove that the endorsement is not correct. 5. Sri. A. Sudhi Vasudevan, the learned counsel for the landlord drew our attention to the judgment of this Court in Vipinachandran v. Xavier (2005 (4) KLT 850) to which one of us [PCK(J)] was party. 5. Sri. A. Sudhi Vasudevan, the learned counsel for the landlord drew our attention to the judgment of this Court in Vipinachandran v. Xavier (2005 (4) KLT 850) to which one of us [PCK(J)] was party. The learned counsel submitted on the basis of the above judgment that it has been held that notice under the proviso to Section 11(4)(i) need only be sent by registered Post to the address of the premises which are subject matter of the eviction proceedings and the responsibility of the landlord to send the above notice cannot be equated with the responsibility of the plaintiff in a suit for serving notice on the defendant under Order 5 of the Code of Civil Procedure. The learned counsel submitted that as far as the present case is concerned, there cannot be any genuine dispute that the original of Ext.A1 was sent to the revision petitioner in the address of the petition schedule building shown in Ext.A3, the lease deed which admittedly governs the lease. Counsel submitted that the door number mentioned on the cover was the previous door number at the time of commencement of the lease and the tenant cannot contend that any prejudice has been caused to him on account of the current door number not being mentioned on the cover. 6. Sri. T.M. Abdul Latiff, counsel for the revision petitioner would submit that the judgment in Vipinachandran’s case (cited supra) cannot have any application to the facts which obtained in the present case. In Vipinachandran’s case the Division Bench noticed that the alleged sub lessee had been made a party and the statutory notice was sent to him also. The notice sent to the alleged sub lessee was received by him. Therefore, the Division Bench had every reason to presume that the lessee who was the landlord of the sub lessee was also given information regarding the landlord’s objections in the matter of the sublease. It was submitted by the learned counsel for the landlord that if an opportunity is given it may be possible for the landlord to cite the postman also as additional witness on the side of the landlord. 7. We have considered the submissions addressed by the learned counsel on the basis of the judgment in Vipinachandran’s case. According to us, the above judgment is distinguishable in view of the facts which obtain in the present case. 7. We have considered the submissions addressed by the learned counsel on the basis of the judgment in Vipinachandran’s case. According to us, the above judgment is distinguishable in view of the facts which obtain in the present case. As argued by Mr. Latiff in Vipinachandran’s case the alleged sub-lessee was a party to the notice and the rent control petition. The notice was actually received by the sub-lessee and the court could justifiably assume that information regarding the notice was conveyed to the lessee by the sub-lessee. In the present case, the alleged sub-lessee is not made a party either to Ext.A1 notice or to the Rent Control petition. Even the name and address of the alleged sub-lessee is not disclosed in the present case. Ext.A2 will show that the same was attempted to be delivered first through the postman of beat No.10 of Kozhikode post office. The said Postman made several attempts and he made an endorsement that there is no such addressee in beat No.10 and therefore, Ext.A2 was given to the postman of beat No.14. It is seen that postman of beat No.14 also made attempts to deliver and he lastly could endorse that there is no such Poovalapu and assessment No.9/968 in his beat and accordingly, Ext.A2 was given to the postman of beat No.13. The above post man also was unsuccessful in effecting delivery and accordingly, Ext.A2 was given to the postman of beat No.16. It is on the basis of the inability of the said postman to serve notice that an endorsement that there is no such addressee was made on the original of Ext.A2 and Ext.A2 was returned to the sender. On the basis of various endorsements on Ext.A2 we find it extremely difficult to accept the case of the landlord that return of Ext.A2 to it’s sender is as a result of the collusion between the postman and the revision petitioner/tenant. We have taken into account the response of the revision petitioner to the notice in the Rent Control Petition which was sent to him in his residential address. He readily accepted the same engaged a counsel and defended the RCP. The averments in the affidavits submitted by the landlord in lieu of his chief examination in the case are also significant. He readily accepted the same engaged a counsel and defended the RCP. The averments in the affidavits submitted by the landlord in lieu of his chief examination in the case are also significant. The claim in that affidavit is that original of Ext.A1 was sent to the residential address of the revision petitioner also. Significantly, no evidence whatsoever is produced by the landlord to support the above claim does not find a place in the Rent Control Petition. 8. We may now advert to another aspect which was highlighted before us by Sri. T.M. Abdul Latiff. He submitted that the allegations in the rent control petition regarding the ground of sublease are not specific and that even the name of the alleged sub-lessee is mentioned in the RCP. We also feel that it would have been ideal if the landlord had atleast disclosed the names and like details of the alleged sub-lessee or transferee. Section 21 of Act 2 of 1965 provides that an order passed against a tenant will be binding on the subtenant also irrespective of whether the subtenant is made a party to the proceedings unless there arises an allegation that the eviction order was obtained by fraud or collusion. Notwithstanding Section 21, we feel that in cases where unauthorized subletting or transfer is raised as a ground for eviction it is most appropriate that the alleged sub-lessee or transferee is made a party. We take the above view as in all cases of eviction on the ground of subletting or unauthorized transfer issues which often arise is regarding the jural nature of the possession enjoyed by the alleged sub-lessee or transferee and regarding the alleged sub-lessee’s/transferee’s jural relationship with the transferee tenant. According to us, while deciding such issues the alleged subtenant or transferee is atleast a proper party if not a necessary party. 9. The learned counsel for the respondent submitted that even as the contract rent payable by the revision petitioner is retained at Rs.750/- the revision petitioner is collecting very huge amounts from the transferee. According to him, if the petition schedule building is let out today, the same will fetch a monthly rent of atleast Rs.5000/-. We find some force in the submissions of the learned counsel for the landlord regarding the rent which the building may fetch if the same is let out today. 10. It is also submitted by Sri. According to him, if the petition schedule building is let out today, the same will fetch a monthly rent of atleast Rs.5000/-. We find some force in the submissions of the learned counsel for the landlord regarding the rent which the building may fetch if the same is let out today. 10. It is also submitted by Sri. Sudhi Vasudevan that the sixth respondent in the RCA who is not impleaded in the RCR is no more. He submitted that the second respondent in the RCR also passed away and no steps have been taken by the revision petitioner to implead the legal representatives of that respondent. In view of the above submission, we permit the landlord to implead the legal representatives of the sixth respondent in the RCA and the second respondent in the RCR as additional parties in the Rent Control Petition. We also grant to the respondent/landlord the permission of filling fresh Rent Control Petition for evicting the revision petitioner, if necessary, on the ground under Section 11(4)(i) and any other ground which may be available to the respondent now. 11. Result of the above discussion is as follows: The judgment of the Rent Control Appellate Authority to the extent it relates to the order of eviction passed under Section 11(4)(i) is set aside. The order of eviction under Section 11(2)(b) is confirmed. RCP is remanded to the Rent Control Court. The Rent Control Court is directed to permit the landlord to adduce further evidence in the context of the issuance or otherwise of a statutory notice as required by the proviso to Section 11(4)(i). If further evidence is adduced by the landlord, opportunity will be given to the tenant also to adduce rebuttal evidence. If the landlord seeks amendment of the rent control petition either by incorporating additional pleadings or for impleading any fresh respondent, that application will be allowed by the Rent Control Court, provided application in that regard is filed within one month of parties entering appearance before the court below. The rent payable by the revision petitioner for the building is fixed with effect from 1st September 2010 at Rs.2500/-per mensem. We make it clear that the above fixation of rent is tentative and if either party is aggrieved, they can move the court for fixation of fair rent. Parties will appear before the Rent Control Court on 16-8-2010. The rent payable by the revision petitioner for the building is fixed with effect from 1st September 2010 at Rs.2500/-per mensem. We make it clear that the above fixation of rent is tentative and if either party is aggrieved, they can move the court for fixation of fair rent. Parties will appear before the Rent Control Court on 16-8-2010. The court will make every endeavour to complete the enquiry and pass revised order regarding the liability of the tenant to be evicted on the ground of subletting. Revised order will be passed on the basis of evidence already on record and evidence which comes to be adduced further. It is open to the tenant to file application under Section 11(2)(c) within six weeks from today before the Rent Control Court. Post tomorrow as to be spoken to.