Kalyani Bharathan Vs Abdul Muthalif

@JUDGMENTTAG-ORDER

V. Ramkumar, J

1. Respondents 1, 2, 5 and 4 respectively in a petition for eviction filed as R.C.P. No. 39/1990 before the Rent Control Court, Palakkad, are the revision petitioners herein. The said R.C.P. was filed by the first respondent herein for eviction of the respondents (6 in number) to the said R.C.P. on the ground of sub lease falling order Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the Act).

2. For the sake of convenience, the parties will hereinafter be referred to according to their rank before the Rent Control Court.

3. The Rent Control Court, after trial, as per order dated 19.12.1992, ordered eviction u/s 11 (4)(i) of the Act. Aggrieved by the order for eviction respondents 1 to 3 and 5 filed an appeal before the Rent Control Appellate Authority, Palakkad as R.C.A.No. 6/1993 and as per judgment dated 5.3.2001 the Appellate Authority dismissed the appeal confirming the order for eviction. Hence the present revision.

4. We heard Advocate Sri. N.L. Krishnamoorthy, the learned counsel appearing for the revision petitioners and Advocate Sri. V. Chithambaresh, the learned counsel appearing for the first respondent/landlord.

5. Assailing the orders for eviction, Sri. N.L. Krishnamoorthy made the following submissions before us:

The original lessee of the petition schedule shop room was one Bharathan Vaidyar who was an Ayurvedic Physician. He was running an Ayurveda Oushadasala in the petition schedule premises which is a shop room in a line building. While so, the present landlord''s brother filed a petition for eviction against all the tenants on the ground of reconstruction. Even though the matter was fought up to High Court and an order for reconstruction was secured by him, the same could not be executed due to the town planning restrictions which were subsequently enforced. In the meanwhile, the original tenant Bharathan Vaidyar expired and his tenancy rights devolved on respondents 1 to 6 who are his widow and children. Since none of the legal heirs of Bharathan Vaidhyar had the necessary qualifications to run the Oushadasala, they had to necessarily look for other avocation in life. It was under these circumstances that the first and 3rd respondent together started a restaurant under the name and style of ''Hotel Surya''. Since they did not have the necessary experience or expertise in conducting the said business a partnership was formed by the 3rd respondent with one Ramankutty Gupthan as per Ext.B1 partnership dated 19.5.1985 for a period of 5 years from 11.5.1985 onwards. But the payment of rent rates and taxes including electricity and other charges was continued to be made by the 3rd respondent who retained the dominion over the premises. The licence for the business was also in the name of the 3rd respondent who was only learning the trade. While so, the landlord who got frustrated for not being able to get vacant possession of the premises pursuant to the original R.C.P. filed in the year 1975, caused to be sent Ext.A1 lawyer notice dated 23.4.1990 to the first respondent (widow of Bharathan Vaidhyar) alleging that respondents 1 to 6 have sub let the premises to a stranger. The name of the stranger was not disclosed in the said notice. Ext.A2 reply notice dated 17.5.1990 was sent to the landlord stating the true facts and also informing him that there was no sub lease but only a partnership which also was dissolved and that the restaurant was now run by respondents 1 and 3. In spite of that, the landlord filed the present R.C.P. No. 39/1990 alleging subletting to a stranger whose name was not revealed in the Rent Control Petition as well. Along with the Rent Control Petition the landlord took out an exparte commission on 28.6.1990. The Advocate Commissioner who filed Ext.C1 report dated 13.7.1990 has stated that he did not see any of the children of Bharathan Vaidyar in the premises but saw the three sons of Ramankutty Gupthan conducting the hotel and one of them told the Commissioner that Ramankutty Gupthan who was on that day laid up was running the hotel. It was no part of the Commissioner''s function to submit such a report which contains only hearsay evidence. The respondents had filed detailed objection to the Commissioner''s Report. Even after the receipt of Ext.A2 reply notice and the filing of Ext.C1 report, the landlord did not amend the Rent Control Petition to implead Ramankutty Gupthan nor did the landlord incorporate a plea that Exts.B 1 and B21 as per which the partnership with Ramankutty Gupthan was started and later dissolved, are sham documents. It was for the first time when the landlord mounted the witness box as PW.1 that he came out with the case that Ramankutty Gupthan was the stranger in whose favour the tenants had parted possession. The non-mention of the name of the alleged sub-lessee both in Ext.A1 notice and in the Rent Control Petition has not only caused a serious breaches to the tenants in shaping their defence, it will also render the prodeedings defective and invalid. It is now well settled that the act of the tenant forming a partnership with another for the conduct of the business in the tenanted premises does not amount to transfer of his rights under the lease or subletting so as to attract Section 11(4)(1) of the Act. At any rate, by virtue of the proviso to Section 11(4)(i) of the Act as interpreted in Leela v. Ali and Ors. (1982 KLT 685) the tenant has the right to terminate the objectionable sub lease upon receipt of statutory notice and a ground for eviction under the above provision will enure to the landlord only, if, even after the statutory period of 30 days, the tenant does not terminate the objectionable transfer or sub lease and the same subsists even after the expiry of the statutory period of 30 days. By Ext.B21 document the partnership business was terminated by the tenant and the landlord was also informed of the same as per Ext.A2 reply notice. Except for the solitary evidence of the landlord examined as PW.1 and the report of the ex pane Commission, there was no independent evidence adduced by the landlord to substantiate the plea of sub letting. Hence the orders of the Rent Control Authority overlooking these vital aspects cannot be sustained.

6. We are afraid that we find ourselves unable to agree with the above submissions. The tenanted premises which is the subject matter of these proceedings is a shop room in a line building on the southern side of the market road in Koppam amsom of Palakkad town. The original lessee of the petition schedule shop room was one Bharathan Vaidhyar who was conducting a vaidhyasala selling ayurvedic medicines and preparations. It is true that the then landlord had filed petition for eviction of the tenants in the said line building and R.C.P. No. 99/1975 was the one filed against Bharathan Vaidhyar. Eventhough the landlord succeeded in the said attempt by getting an order for eviction on the ground of reconstruction u/s 11 (4)(iv) of the Act, on account of the subsequent implementation of the town planning scheme in that area the landlord was not able to get a revised plan and licence approved in accordance with the town planning scheme and the line building could not be reconstructed. That need not in any way affect the bonafides of the present Rent Control Petition filed as R.C.P. No. 39/1990 on the ground of sub letting which is a totally different cause of action. If the plea of the landlord that the legal heirs of Bharathan Vaidyar (who died in the meanwhile) have either parted with their possession of the premises or have sublet the premises so as to attract Section 11 (4)(i) of the Act is upheld, then the landlord will be entitled to an order of eviction notwithstanding the dismissal of R.C.P. No. 99/1975.

7. There is no dispute that the lease in favour of Bharathan Vaidhyar did not confer on him any authority to transfer his rights under the lease or sublet the whole or any portion of the premises without the consent of the landlord. It is true that neither Ext.A1 notice nor the Rent Control Petition discloses the name of Ramankutty Gupthan who was the alleged sub lessee to whom the tenants are said to have sublet the premises. First of all, the landlord examined as PW.1 has stated that he got the name of Ramankutty Gupthan only after the filing of Ext.C1 report by the Advocate Commissioner. Secondly, the non-mention of the name of the alleged sub lessee does not invalidate or vitiate the notice, (vide Mini Vs. Leela and Others, . In fact, the relevant provisions of the Act do not give any importance to the transferee or sub lessee as the case may be. Even the proviso to Section 11 (4)(i) of the Act only obliges the landlord to send a registered notice to the tenant intimating the contravention of the prohibition in the lease against transfer or subletting and providing an opportunity to the tenant to terminate the transfer or sub lease, as the case may be. The emphasis in the above provision is on the objectionable conduct of the tenant in committing breach of the terms of the lease and not on the objectionable presence of the sub lessee. That is presumably the reason why u/s 21 of the Act a specific provision is made that an order for eviction of a tenant shall be binding on the sub tenant also whether he is a party to the proceedings or not.

8. The right of the tenant under the lease is to enjoy the tenanted premises on payment of rent to the landlord. (See Mini Vs. Leela and Others, . When a stranger other than the tenant is found in the tenanted premises, primarily it is for the tenant to explain the jural relationship between the tenant and such stranger because the arrangement under which such stranger happens to be in physical possession of the premises is one which is within the exclusive knowledge of the tenant. In such a situation the burden is on the tenant to show that there is no sub lease or transfer of possession. If the tenant fails to discharge the said burden, the Court can draw its own inference on facts. (Joginder Singh Sodhi v. Amar Kaur 2004 (8) Sc 74)). The mere fact that the licence for the trade is in the name of the tenant cannot rule out the possibility of another person being in possession. (Vide Unni Vacco Vs. Thankamma Gregory, The landlord does not and is also not expected to know the nature of the private arrangement between the tenant and the person found in the premises. In this case the landlord has in unmistakable terms stated in Ext.Al that the tenants have parted with their possession to a stranger. In answer to the said notice the stand that was taken by the tenant in Ext. A2 reply notice was that the arrangement was not subletting as alleged in Ext.Al notice but a partnership which has been terminated and at present, respondents 1 and 3 alone are conducting the hotel. The tenants, however, did not disclose in Ext.A2 the name of the partner or the details of the partnership or the mode by which it was terminated. Under these circumstances the failure to mention the name of the alleged sub-lessee in the Rent Control Petition cannot be fatal. Similarly, the failure to supply the name of the sub lessee and the failure to impugn Ext.B 1 partnership deed as a sham document by amending the pleadings, also cannot be fatal to the landlord. It is well settled that in rent control proceedings a liberal and realistic approach and not a pedantic approach should be made while construing the pleadings. (Vide Thankappan v. Reji Xavier 1995 (1) KLT SN 10 Subbiah Reddiar v. Chinnamma 1991 (2) KLT 461 and Ram Narain Arora Vs. Asha Rani and Others, . A meticulous analysis of pleading which may lead to failure of justice is not expected to be adopted. (Vide Madhavan v. Leelamma 1991 (2) KLT 32.

9. In paragraph 5 of the R.C.P. it has been unequivocally alleged that the respondents are understood to have either transferred their rights under the lease or sublet the leasehold to a 3rd party who has been running therein an eating house under the name and style of ''Hotel Surya'', that none of the respondents is seen in the premises nor are they associated with the actual conduct of the business being carried on there, that it is the 3rd party who is conducting the hotel business and who is in exclusive possession of the leasehold and that the respondents have no manner of control over or possession of the premises nor any interest in the business earned on therein. According to us Ext.A1 notice and the aforementioned averments in the R.C.P. clearly satisfy the legal requirements which the landlord is expected to satisfy.

10. In a case as the present one where after receipt of the statutory notice the tenant terminates the objectionable arrangement, it may not be necessary to examine the nature of such arrangement because the landlord will be entitled to file a petition for eviction only if the objectionable arrangement still subsists even after the expiry of 30 days from the date of the statutory notice. But the definite stand which the respondents have taken is that there was no sub lease or parting of possession but there was only a partnership which is permissible in law and even that partnership was terminated on receipt of Ext.A1 notice. It is here that Ext.C1 report of the Advocate Commissioner assumes great importance. No doubt, it was an exparte Commission. No landlord who alleges subletting or non-user of the tenanted premises by the tenant can expect to prove the same by taking out a commission after notice to the tenant. This is because in such a contingency the tenant can very well stage manage the situation and temporarily cause disappearance of the objectionable contravention by him. Eventhough the respondents filed objections to Ext.C1 report and also subjected CW.l the Commissioner to a searching and incisive cross-examination, nothing has been brought out to shake the credibility of the Commissioner who has inter alia stated in Ext.C1 report that when he inspected the ''Surya Hotel'' building on 28.6.1990 at 4 p.m. one P.R. Rajan who is one of the sons of Ramankutty Gupthan was conducting hotel business, that besides P.R. Rajan there were one P.R.Pradeep and P.R. Nanda Kumar who are brothers of the said P.R. Rajan present in the premises, that none of the six respondents to the R.C.P. was present there and that there were customers taking tea and food from the restaurant where four workers by name Ramankutty Nair, Mohanan, Sulaiman and Sudheesh were found engaged in doing their work. On enquiry by the Commissioner the three sons of Ramankutty Gupthan told him that they were conducting the hotel business on behalf of their father Ramankutty Gupthan to whom the disputed building was entrusted by the 3rd respondent and that their father Ramankutty Gupthan was at that time laid up and taking rest in their house at Kadampazhipuram. If as a matter of fact, the partnership business which the tenants claimed to have started along with Ramankutty Gupthan as per Ext.B1 partnership deed dated 19.5.1985 was actually terminated on 14.5.1990 as per Ext.B21 as the tenants would contend, then there was absolutely no business for any of the sons of Ramankutty Gupthan to conduct the restaurant on 28.6.1990 when the Commissioner visited the premises. Ext.C1 not only demonstrates that the partnership deed was merely a "make-believe" or a subterfuge but also suggests that notwithstanding Ext.B21 termination, the earlier arrangement by which Ramankutty Gupthan was given a free hand in the restaurant business and the premises was being continued and the respondents had virtually faded into insignificance. The decision reported in Parvinder Singh Vs. Renu Gautam and Others, shows that there also the report of the Commissioner was relied on to hold that the partnership was a mere cloak. It is in this context that Ext.B1 partnership deed assumes relevance. A perusal of the recitals in Ext.B 1 partnership deed (which is not seen registered with the Registrar of Firms) will show that the only investment of the 3rd respondent was the offering of the lease hold premises valued at Rs. 65,000/- where as the investment of Ramankutty Gupthan was Rs. 65,000/- in cash. What is more interesting is the stipulation in Ext.B 1 that even if the joint venture was to run at a loss, the 3rd respondent was assured a fixed amount of Rs. 50/- per day on all the six working days and Rs. 20/- per day on all holidays. Such an arrangement without any sharing of loss by one of the partners but ensuring an assured income to him even in the event of loss, can only be treated as a device carefully invented to ensure consideration to the tenant for allowing the premises to be used for conducting a restaurant. It is well settled that Courts can lift or pierce the veil of partnership set up as a camouflage to circumvent the provisions of the Rent Control Act. (Vide Libi v. Devassy 2002 (3) KLT 685 Paragraphs 5 and 11) and Parvinder Singh Vs. Renu Gautam and Others, paragraphs 8 and 9).

10. There is yet another circumstance which fortifies the fact that Ext.Bl partnership was just a smoke screen put up with a view to cover up the real truth that it was Ramankutty Gupthan who was conducting the hotel to the exclusion of the respondents. PW.2 who was the manager of the Palakkad branch of Lord Krishna Bank proved Ext.X 1 hypothecation agreement and Ext.X2 sanction letter, has deposed before Court that the loan for ''Surya Hotel'' was sanctioned and the movables scheduled to Ext.X1 were hypothecated on 28.8.1987 on the premise that the said hotel absolutely belonged to Ramankutty Gupthan. It was not revealed to the bank that the hotel business carried on in the petition schedule shop room actually belonged to the partnership firm said to have been constituted as per Ext.B1. So Ext.B1 arrangement was only a mirage conceived of for the only purpose of hoodwinking the landlord.

11. The finding of the authorities is that Ext.B 1 was nothing but a disguise invented by the tenant to camouflage the real state of affairs. Such a concurrent finding recorded by the authorities below is a finding of fact (vide P.A. Thomas and Another Vs. M. Mohammed Tajuddin and Another, and Patel Valmik Himatlal and Others Vs. Patel Mohanlal Muljibhai (Dead) Through L.Rs., . The fact that the licence continued to be in the name of the tenant, in such circumstances, is of no avail to the tenant. Unni Vacco Vs. Thankamma Gregory, . The jurisdiction of this Court to interfere with such concurrent finding of fact based on evidence is very limited. (Vide Patel Valmik Himatlal and Others Vs. Patel Mohanlal Muljibhai (Dead) Through L.Rs., . We therefore do not find any illegality, irregularity or impropriety in the impugned orders so as to warrant interference u/s 20 of the Act.

This Revision which is devoid of any merit is accordingly dismissed with costs.

Soon after pronouncement, of the order, the learned counsel for the revision petitioners prayed for time to surrender vacant possession of the premises. Even though the learned counsel for the landlord stoutly opposed the prayer contending that the sub-'' lessee is not entitled to make any such request, we are inclined to grant two months time to the revision petitioners to surrender vacant possession of the premises provided they file an undertaking to that effect before the Executing Court within two weeks from today.

Order on C.M.P.No. 3786/2001 in C.R.P. No. 1732/2001 Dismissed.