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2012 DIGILAW 947 (KER)

Mariamma Jose v. Jovin Vincent

2012-10-18

A.V.RAMAKRISHNA PILLAI, PIUS C.KURIAKOSE

body2012
JUDGMENT Ramakrishna Pillai, J. 1. The tenant, who faced an order of eviction, under Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1969 (hereinafter referred to as, 'the Act'), in an appeal filed by the landlord against the dismissal of the claim petition by the Rent Control Court is in revision before us. 2. The respondent/landlord approached the Rent Control Court, alleging as follows: The husband of the petitioner/tenant took the tenanted premises on lease in the year 1982 from the predecessors-in-interest of the petitioner. The respondent purchased the tenanted premises in the year 2003. After the death of the petitioner's husband, the petitioner subleased the tenanted premises to one Zaccaria, receiving a monthly rent of `9,000/-. This was contrary to the terms and conditions of the lease deed and without the knowledge and consent of the respondent, who had atoned to the petitioner. Now, the said Zaccaria is in possession of the tenanted premises. The notice under the first proviso to Section 11(4)(i) was replied against raising unreasonable contentions which necessitated the claim for eviction. 3. The petitioner resisted the claim petition contending, among other things, that she had not subleased or transferred possession of the tenanted premises, as alleged in the petition. According to her, after the death of her husband in the year 1998, the business was continued by herself and her son. The bakery business which was being carried on, turned to be unprofitable and a business dealing with sale of duty paid items was started under the name and style 'Sun Collections Duty Paid Shop'. As the petitioner was not familiar with the nature of the new business, one Shaji who was a friend of the brother of her husband was appointed as the manager. The alleged sub lessee Zaccaria was brought in by the said Shaji, whose service was subsequently terminated on detection of disloyalty and fraudulent dealings. It was further contended that subsequently, Zaccaria was appointed as the manager who, taking advantage of the helplessness of the petitioner and her son's physical incapacity, started fraudulent and surreptitious dealings by printing his name and phone number on the bills. It was further alleged that attempts were also made to get various registrations relating to the business changed to his name. It was further alleged that attempts were also made to get various registrations relating to the business changed to his name. According to the petitioner, the landlord has joined hands with the alleged sub lessee and given all encouragements to get the petitioner ousted from the tenanted premises. 4. The Rent Control Court on the basis of oral testimonies of PWs 1 to 3 and DW1 as well as Ext.B1 series to B10 and Exts.X1 to X4 accepted the contention of the petitioner which resulted in the dismissal of the claim petition. On appeal by the respondent, the said order was reversed by the Rent Control Appellate Authority by the impugned judgment. 5. We have heard the submissions of Mr.K.P.Sreekumar, the learned counsel for the petitioner and those of Mr.G.Sreekumar (Chelur), the learned counsel for the respondent. We have perused the records including the impugned judgment as well as the order of the Rent Control Court. 6. The argument advanced by the learned counsel for the petitioner is that the Rent Control Appellate Authority went wrong in reversing the order of the Rent Control Court on totally unsustainable grounds. According to him, the court below has lost sight of the fact that the alleged sub lessee was, in fact, implementing the scheme of the landlord to get the petitioner evicted from the tenanted premises. According to the learned counsel, the alleged sub lessee was only a manager appointed by the petitioner to look after the business and possession of the premises continued with the petitioner. 7. The learned counsel for the respondent, per contra, supporting the impugned judgment would contend that convincing evidence was adduced by the respondent/landlord in discharge of his initial burden to prove that a third party was inducted to the tenanted premises which gives rise to the presumption of sublease and the petitioner/tenant has failed to dislodge the presumption of sub tenancy by adducing cogent evidence in support of her contention. It was further argued by the learned counsel that Exts.X1 to X4 series documents would reveal that the business run in the tenanted premises has been transferred in the name of Zaccaria, the alleged sub lessee. According to him, the finding of the Appellate Authority is supported by legal evidence and there is no scope for interference by this Court in exercise of the revisional powers under Section 20 of the Act. 8. According to him, the finding of the Appellate Authority is supported by legal evidence and there is no scope for interference by this Court in exercise of the revisional powers under Section 20 of the Act. 8. As the findings of the court below are divergent, we made a quick survey over the entire evidence on record, as we felt that it is only just and proper to do so for appreciating the rival submissions addressed at the Bar, though we are not expected to re-appreciate the evidence in exercise of the revisional powers under Section 20 of the Act. Before visiting the arguments advanced by either side, it is profitable to have a look at the relevant provision of the Act which permits the landlord to approach the Rent Control Court for eviction on the ground of sublease. Section 11(4)(i) of the Act reads as under: "(4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building - (i) if the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub-lets the entire building or any portion thereof if the lease does not confer on him any right to do so. [Explanation.-Where on the partition of a joint family or the rights of co-tenants or on the dissolution of a firm, the right of the joint family or the co-tenants or the firm under a lease is vested in a member of the joint family, or a co-tenant or a partner, as the case may be, whether by act of parties or otherwise, no transfer by the tenant of his right under the lease shall be deemed to have taken place within the meaning of this clause; or] [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 contention of the lease and the tenant has failed to terminate the transfer or the sublease, as the case may be, within thirty days of the receipt of the notice or the refusal thereon.]" 9. The transfer, by a tenant of his rights under the lease, envisaged by the aforesaid section can be by any of the modes covered by the provisions of Transfer of Property Act, 1882. If such transfer is otherwise than by way of lease, the first part of Section 11 (4)(i) of the Act would be attracted and if the transfer is by way of lease, it will come within the purview of the later part of Section 11(4)(i). In both the cases, there should be a specific positive act on the part of the tenant, inducting a third party to the tenanted premises. Unless there is such a change of possession, a petition for eviction under Section 11(4)(i) would not lie. In the instant case, the presence of Zaccaria, the alleged sub lessee in the tenanted premises on the date of filing of the petition is admitted. However, while the respondent/ landlord would brand it as a sub-lease, the petitioner would contend that there was no change in possession as he was only her manager. 10. The learned counsel for the respondent inviting our attention to a series of judicial pronouncements starting from Associated Hotels of India Ltd. v. S.B.Sardar Ranjit Singh (AIR 1968 Supreme Court 933) would argue that, when eviction is sought on the ground of sub-letting, though the onus of proof of sub letting is on the landlord, if the landlord prima facie shows that the third party is in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence. The aforesaid legal position was cited by the Apex Court in subsequent decisions also. 11. Now, the material question is whether, the evidence tendered by the petitioner is sufficient to dislodge the presumption and whether the said evidence was correctly appreciated by the court below. The circumstances under which Zaccaria, the alleged sub lessee happened to be in the tenanted premises is explained by the petitioner who gave evidence before the trial court as RW1. According to her, after the death of her husband, the bakery business which was being conducted in the tenanted premises ran into rough weather and in the year 2002, in consultation with the relatives including one George, who is none other than the brother of her husband decided to start the duty paid shop. According to her, after the death of her husband, the bakery business which was being conducted in the tenanted premises ran into rough weather and in the year 2002, in consultation with the relatives including one George, who is none other than the brother of her husband decided to start the duty paid shop. As the petitioner as well as her son, who was school going at that time was not experienced in the field of said business, one Shaji was appointed as the manager and it was he who appointed Zaccaria, the alleged sub lessee. Her case is that, as she was not in a position to attend the shop because of the illness of her son, she had to depend upon the manager to conduct the business and she gradually came to know that Shaji was not faithful in keeping the accounts. Resultantly Shaji was expelled from service and Zaccaria was appointed as the manager. The petitioner became aware of the manipulations of Zaccaria, only when she got a copy of the commission report in Ext.A10 suit filed by the respondent/landlord against sublease and material alterations. Her further case is that later Zaccaria filed Ext.A9 suit and obtained a temporary injunction against her alleging forcible eviction. The story put forward by RW1 is neither improbable nor unbelievable, while viewed in the back drop of the pathetic condition of a widow, who is likely to be cheated by relatives and friends after the death of her husband in the present Indian conditions. 12. The learned Appellate Authority found that the quality of assertion made by the petitioner as above is insufficient for non suiting the respondent/landlord. The Appellate Authority relied on Exts.X1 to X4 series which would indicate that registration of the business run in the tenanted premises before the Labour Officer has been changed in the name of Zaccaria. These documents were produced and marked through the Labour Officer, who was examined as PW3 before the Rent Control Court. According to him as per Ext.X1, the owner of the shop was one Shaji and on 19/10/2004, it was transferred to the name of Zaccaria However, he pleaded ignorance regarding the document on the basis of which the said transfer was made. 13. According to him as per Ext.X1, the owner of the shop was one Shaji and on 19/10/2004, it was transferred to the name of Zaccaria However, he pleaded ignorance regarding the document on the basis of which the said transfer was made. 13. Whether the change of transfer indicated in Ext.X1 was sufficient to prove transfer of possession, was a crucial aspect which escaped the attention of the learned Appellate Authority. Ext.B3 series receipts obtained by the petitioner for paying professional tax pertaining to the business in the tenanted premises, Ext.B4 notice issued by the local authority demanding payment of professional tax, Ext.B5 and B5(a) which are the receipts for payment of D&O licence, the fact that the telephone connected to the tenant premises still stands in the name of the petitioner, as evident from Ext.B6 series bill etc, have not gained proper attention of the learned Appellate Authority. The fact that the petitioner faced orders in Exts.A9 and A10 suits, which were filed by the alleged sublessee and the respondent respectively, was also not taken note of seriously by the learned Appellate Authority. 14. During the course of the argument, we had the profit of noticing the decision of this Court in Sadasivan Chettiar v. Rajendran (2005 (1) KLT 653) which considered a question of sublease raised by the landlord. It is useful to extract the relevant portion of the judgment which reads as follows: "An inference of transfer including sub-letting cannot necessarily follow from the mere fact that somebody other than the tenant is found in possession of the tenanted premises. If it is a lease for residential purpose, there can be a host of reasons as to why at a given point of time or duration, the tenant is absent in the premises and a member of his family or a near relative or even a stranger on his behalf might be found in the premises with the knowledge, consent or request of the tenant. Such instances do not necessarily spell out any transfer of rights under the lease or sub-letting within the meaning of this provision. Likewise, in the case of a commercial lease, it may be the manager or agent or an employee of the tenant who may be found in actual possession of the premises where, however, the tenant might retain an active role in the business carried on in the premises. Likewise, in the case of a commercial lease, it may be the manager or agent or an employee of the tenant who may be found in actual possession of the premises where, however, the tenant might retain an active role in the business carried on in the premises. These are all instances where it is capable for the tenant to offer satisfactory explanation for the possession of the premises by a person other than the tenant. If in such circumstances, the Court were to find sub-letting or a transfer of his rights under the lease by the tenant, it would undoubtedly be a rash finding. But there may be situations where the tenant altogether vanishes from the scene or transplants himself or his business to some other premises and somebody (which may even include a close relation of the tenant) is found in exclusive possession of the premises and/or in respect of the business carried on therein under such circumstances as to exclude even the tenant from enjoying the premises or the business carried on therein. Those are situations which call for an explanation from the tenant because the arrangement under which a stranger to the contract of tenancy happens to be in exclusive possession of the premises and/or the business carried on therein something which is within the exclusive knowledge of the tenant." 15. The answer to the question whether there was sub-letting or not, therefore, clearly depends upon a positive act on the part of the tenant with the intention of placing the alleged sub-lessee in his position. 16. The learned counsel for the petitioner relying on the judgment authored by Hon'ble Mr.Justice R.V.Raveendran in Bharath Petroleum Corporation Ltd. v. Chembur Service Station (2011) 3 SCC 710) would argue that, where an employer or principal permits the use of his premises, by his employee or agent, such use, whether loosely referred to as 'possession' or 'occupation' or 'use' by the employee or the agent, is on behalf of the employer/principal and the employer/principal continues to be in possession and occupation and the employee/agent is merely the licencee. The said proposition does not require further elucidation because the licence which is granted to the employee or agent is a limited one to enter upon and use the premises for the purpose of the employee or the agent. The said proposition does not require further elucidation because the licence which is granted to the employee or agent is a limited one to enter upon and use the premises for the purpose of the employee or the agent. The crucial question, therefore, is whether the status of the alleged sub-lessee was that of an employee or not. An employee or agent of the lessee who usurps the possession of the lessee and claims independent right, in our considered view, is not a sub-lessee within the meaning of Section 11(4)(i). However, it is the obligation on the part of the lessee to expel such miscreants from the tenanted premises and to make it trouble free. 17. The learned counsel for the respondent would contend that the clear admission of the petitioner that Shaji was inducted to the tenanted premises on the understanding that he would be given 20% of the profit, would indicate that the petitioner had consciously transferred the premises in violation of the terms of the agreement. According to him, it was a clear sharing of profit of the business between the petitioner and the said Shaji. But, in our view, it cannot be categorised as sharing of profit. The understanding between the parties that a fixed percentage of the profit would be given to Shaji in consideration of the services rendered by him, in our view, is in the nature of an incentive to ensure his full dedication in the business. 18. It was pointed out by the learned counsel for the petitioner that Zaccaria, the alleged sub lessee is no more and his legal heirs are not claiming any interest in the tenanted premises. In a similar context, a Division Bench of this Court of which one among us is party (Justice Pius C. Kuriakose) in Lakshmi v. Rahmath (2011 (1) KLT 958) has observed that the expression "to terminate the transfer or sublease" used in the proviso to Section 11(4)(i) means full and effectual termination of sub-lease or transfer in the sense that the alleged sub-lessee or transferee is sent away from the building. In that case, admittedly, the alleged sub-lessee could be ejected actually only during the pendency of the proceedings. Taking note of that fact, it was held that the rent control petition, instituted on the basis that sub-lease or transfer was not terminated in spite of statutory notice, was perfectly maintainable. 19. In that case, admittedly, the alleged sub-lessee could be ejected actually only during the pendency of the proceedings. Taking note of that fact, it was held that the rent control petition, instituted on the basis that sub-lease or transfer was not terminated in spite of statutory notice, was perfectly maintainable. 19. In the case in hand also, Zaccaria, the alleged sub lessee was in the tenanted premises on the date of petition. The learned counsel for the respondent would submit that as Zaccaria was not sent out on getting the notice, the revision petitioner has entailed the liability of eviction under Section 11(4)(i) and the subsequent termination as lodged now will not be of any use. In our view, in the facts and circumstances of the case, the absence of alleged sub-lessee in the tenanted premises subsequent to the filing of the petition is a corroborative piece to test the veracity of the stand taken by the petitioner, though that by itself will not enable the petitioner to non-suit the respondent. 20. Going through the impugned judgment and the other relevant records, we notice that no serious efforts have been made by the learned Appellate Authority to find out whether the presence of the third party (Zaccaria, the alleged sub-lessee), was as a transferee in possession or as an employee of the petitioner tenant. Hence, we are of the definite view that the impugned order of eviction has to be interfered with and the matter has to be remanded to the Rent Control Appellate Authority for fresh disposal after considering this crucial aspect. 21. The result of the above discussion is, therefore, as follows: The Rent Control Revision is allowed. The impugned judgment in R.C.A.No.77/2008 of the Rent Control Appellate Authority, Trichur, is set aside and the matter is remitted back to the said Appellate Authority for fresh disposal, after considering whether the presence of Zaccaria, the alleged sub-lessee, was as a transferee or as an employee of the petitioner. Both sides shall be given an opportunity to adduce further evidence, if they choose. The Rent Control Appellate Authority shall complete the entire exercise within a period of three months from the date of appearance of the parties before the court below. Parties shall mark their appearance before the court below on 30/10/2012. No costs.