Kerala High Court · 2009

ADV. SRI.K.G.GOURI SANKAR RAI FOR R10-16 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON 27/08/2009 PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No.48 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of August, 2009 Barkath Ali, J. ORDER The tenth respondent in R.C.P.No.4/1999 on the file of Rent Controller ( Munsiff), Kasargod who is the alleged sub-tenant and appellant in R.C.A.No.43/2004 on the file of Rent Control Appellate Authority( Adhoc II), Kasargod is the revision petitioner herein. He challenges the order of Rent Control Court ordering eviction under Section 11(2) and 11(3) of the Act which is confirmed by the Appellate Authority. The Rent Control Court though ordered eviction under Section 11(4)(i) of the Act, the Appellate Authority rejected that claim.

2. Late T.K.Abdulrahiman/landlord filed R.C.P.No.4/1999 before the Rent Control Court claiming eviction under Section 11(2), 11(3) and 11(4) (i) of the Act on the ground that the tenants have kept rent in arrears from 08/08/1996 onwards, that tenants have sub let the building to the revision petitioner/tenth respondent in RCP, that the landlord bonafide requires the petition schedule room for his son to RCR.No.48/09 2 start a grocery business, that there are no other vacant buildings in the possession of the landlord, that tenants are not depending for their livelihood on the income derived from the business conducted in the petition schedule room and that the tenants are not entitled to the protection under the first and second provisos to Sub Section 3 of Section 11 of the Act.

3. The original tenant was one Malinga Gatty. Respondents 1 and 2 in RCP as well as in the revision petition are his children. Third respondent is his daughter. Respondents 3 to 9 are the children of deceased Susheela - the daughter of Malinga Gatty. The tenth respondent in RCP who is the revision petitioner is the alleged sub tenant. About 7 years prior to the date of filing of RCP Malinga Gatty died. Thereafter respondents 1 to 9 are the tenants. Landlord died during the pendency of the appeal. Revision respondents 10 to 16 are his legal heirs.

4. Respondents 2, 3, 4 and 5 and 7 and 10 contested the claim contending that the deceased Malinga Gatty surrendered the shop room to the landlord and subsequently the revision petitioner/tenth RCR.No.48/09 3 respondent took it on lease from the landlords and that at present respondents 1 to 9 have no manner of right over the same. They have also contended that there are no rent in arrears, that the bona fide need put forward by the landlord is not genuine, that there is no such sub-lease as alleged by the landlord, that the revision petitioner/tenth respondent is depending on the income derived from the business conducted in the petition schedule shop room for his livelihood and that he is entitled to the protection under first and second provisos to Sub Section 3 of Section 11 of the Act.

5. The landlord was examined as PW1 and Exts.A1 to A14 were marked on the side of landlord. On the side of the revision petitioner/ the tenth respondent he was examined as RW1 and he produced Exts.B1 to B8(c).

6. The Rent Controller on an appreciation of evidence found that there are rent in arrears, that the landlord bonafide requires the petition schedule shop room for his son to start a grocery shop, that the tenants are not entitled to the benefit of first and second provisos to Sub Section 3 of Section 11 of the Act and that respondents 1 to 9 in RCR.No.48/09 4 RCP who are the tenants sub-let the petition schedule shop room to the tenth respondent in the RCP and ordered eviction on all grounds. On an appeal by the revision petitioner, the Appellate Authority confirmed the findings of Rent Control Court regarding the eviction ordered under Section 11(2) and 11(3) of the Act, but set aside the order of Rent Control Court ordering eviction on the ground of sub-lease. Now the tenth respondent in RCP, the alleged sub -lessee has come up in revision.

7. As regards the eviction ordered under Section 11(2)(b) of the Act on the ground of arrears of rent, it has to be confirmed as it is only a tentative order and that the tenants i.e. respondents 1 to 9 of Rent Control Court are entitled to get it vacated under Section 11(2)(c) of the Act after payment or deposit of the arrears of rent.

8. As regards sub-letting, though the Appellate Authority refused to grant eviction on that ground, it has also found that revision petitioner is a sub-tenant , but with the consent of the landlord. The Rent Control Court as well as Appellate Authority rejected the contention of the revision petitioner that the original tenant surrendered RCR.No.48/09 5 the building to the landlord and that he rented out the same to the revision petitioner . As both the courts below find the revision petitioner as a sub tenant, he is not entitled to file this revision as held by a Single Bench of this court in Varghese Ittoop v. District Judge (1991 (2) KLT 394). The Apex Court has also held in K.Sanjeeva Rao and others v. Dr.Thangam Varghese (Ms) and another ( 1999 (7) Supreme Court Cases 585) that a sub tenant cannot challenge order of eviction on any ground. In the light of the principles laid down in the above decisions, the revision petitioner is not entitled to file this revision petition challenging the order of eviction passed by the Rent Control Court and the Appellate Authority.

9. Though we have found that revision petitioner is not entitled to file this revision petition as he is a sub -tenant, as much was argued regarding the genuineness of the bonafide need put forward by the landlord, we shall consider that aspect also. The case of the landlord as PW1 is that his son is without any avocation, that he intends to start a grocery business in the petition schedule shop room and that landlord has no other building in his possession to start the RCR.No.48/09 6 business. The tenants who are respondents 1 to 9 in RCP did not deny the bonafide need put forward by the landlord. RW1, the sub-lessee is not entitled to contest the claim put forward by the landlord regarding bonafide need. Further it is not proved that the bonafide need put forward by the landlord is not genuine or that landlord has any other building in his possession. At present respondents 1 to 9 in RCP are not in occupation of the said building. The tenth respondent in RCP being a sub-tenant is not entitled to claim protection under the first and second provisos of Sub Section 3 of Section 11 of the Act. That being so, the findings of the Rent Control Court which is confirmed by Appellate Authority that the landlord bonafide need the building for his son to conduct a grocery trade has to be confirmed.

10. We have gone through the evidence adduced by both parties before Rent Control Court and the order of Rent Control Court and judgment of Appellate Authority. We find no ground to interfere with the concurrent finding entered by the Rent Control Court and Appellate Authority ordering eviction under Section 11(2) and 11(3) of the Act. We find no illegality, irregularity or impropriety in the order RCR.No.48/09 7 of Rent Control Court and judgment of Appellate Authority to invoke our revisional jurisdiction under Section 20 of the Act. That being so, the revision petition has to be dismissed. In the result, the Revision Petition is dismissed. In the circumstances, parties shall bear their own costs. PIUS C.KURIAKOSE JUDGE P.Q.BARKATH ALI JUDGE sv. RCR.No.48/09 8