Judgment:
ORDER
Pius C. Kuriakose, J.
1. The tenant and the alleged subtenant against whom order of eviction has been passed on the ground of subletting by the Rent Control Appellate Authority are the revision petitioners. The allegation of the respondent landlord who sought eviction of the revision petitioners from the petition schedule building on the ground under Section 11(4)(i) was that the first revision petitioner tenant to whom the building had been let out for the purpose of doing photostat business had wound up that business and that the building has been sublet or transferred unauthorisedly to the second revision petitioner. It was alleged that the second revision petitioner is conducting job typing work in the premises and that in spite of issuance of the statutory intimation notice under the proviso to Section 11(4)(i) the sublease has not been terminated and the second revision petitioner continues to be in possession of the premises.
2. The revision petitioners resisted the petition by filling a joint counter. It was contended that the first revision petitioner tenant is entitled on the terms of the lease to carry on any business of his choice and that the first decision petitioner is continuing to run the photostat business apart from conducting job works which he started recently in the tenanted premises. It was explained that in 2003 the first revision petitioner has to sell his photostat machine which had gone out of order and hence the photostat business could not be run for some time and that the said business was restarted after acquiring a new machine on 23-12-2003. It was further contended that the first revision petitioner is running his concern under the name and style 'Quilon Photostat'. As regards' the presence of the second revision petitioner in the premises, it was contended that the second revision petitioner is only an employee of the first revision petitioner, who is being paid Rs. 150/- per day towards his wages.
3. The rent control petition was enquired into by the Rent Control Court and evidence at trial consisted of testimonies of PW-1 and CPWs. 1 and 2 and documents A1 to A5 and B1 to B10 apart from Exts.C1 and C2 commission report and mahazar. The Rent Control Court on appreciating the materials came to the conclusion that the landlord had failed to establish that the premises had been sublet and that exclusive possession of the premises has been transferred to the second revision petitioner. Accordingly, that court dismissed the RCP. In appeal, however, on a re-evaluation of the evidence in the light of the pleadings and the law, the Appellate Authority would reverse the finding of the Rent Control Court and conclude that there has been transfer of exclusive possession of at least a portion of the tenanted premises to the second revision petitioner and that the revision petitioners were unsuccessful in establishing that the jural relationship between them is that of employer and employee. Resultantly the Appellate Authority would allow the appeal and order eviction under Section 11(4)(i).
4. We have heard the submissions of Sri. T.A. Shaji, learned Counsel for the petitioner and those of Sri. Raja Vijayaraghavan who took notice on behalf of the respondents. Mr. Shaji would draw our attention to paragraph 5 of the rent control petition and corresponding paragraph 8 of the statement of objections filed by the revision petitioners. He drew our attention to the report submitted by the commissioner and to the depositions of PW-1, CPW-1, CPW-2 and CPW-3. He referred to Exts.B1, B2, A2 and A5 and would submit that the finding of the Rent Control Appellate Authority was entered on conjectures and surmises and is based on non-existent material and unjustified assumptions. The learned Counsel submitted that the primary burden to prove that the tenanted premises has been sublet or transferred is on the landlord and the said burden has not been discharged at all in this case by adducing cogent evidence. Mere presence of the second revision petitioner in the room in question or even the fact that he was sitting in the chair put behind the photostat machine will not in any way suggest that the building was sublet or exclusively transferred. The learned Counsel submitted that the case of the revision petitioners supported as the same is by the testimonies of CPWs. 1 to 3 and documents Exts.B1 to B10 was much more probable than that of the land lord. Ext.B1 sale not clearly established that a new photostat machine was purchased by the first revision petitioner. Exts.B2 series are cash bills in the name of the first petitioner towards purchase of spare parts for the machine and B3 series will reveal that the first petitioner is continuing to pay rent to the landlord. As against this there was nothing but the self-serving oral vibrations of the landlord to prove the alleged subletting. The Appellate Authority was not at all justified in drawing adverse inference against the revision petitioners on account of non-production of documents such as wage register etc. Counsel reiterated that the burden of proof has been wrongly cast by the Appellate Authority on the tenant. Counsel would rely on the judgment of a Division Bench of this Court in Abdul Khader v. Ali : 2003(1)KLT546 wherein it is ruled that it is for the landlord to prove that in between the tenant and the sub-tenant there is a relationship of lessee and lessor and the possession of the premise was parted with exclusively by the tenant in favour of the subtenant. Mr. Shaji would argue that it is necessary to succeed in a case for eviction on the ground of subletting, that the landlord should establish landlord tenant relationship between the tenant and the alleged sub-tenant and also that the tenant has parted with exclusive possession of the building in favour of the alleged sub-tenant. Mr. Shaji relied also on the judgment of another Division bench of the Court in Sadasivan Chettiar v. Rajendran. : 2005(1)KLT653 to argue that just because somebody other than the tenant is found in possession of the tenanted premises an inference of transfer including subletting cannot necessarily follow.
5. The submissions of Mr. Shaji were resisted by Mr. Raja Vijayaraghavan who would support the conclusions of the learned Appellate Authority on the reasons stated in that authority's judgment. We have considered the rival submissions in the light of the statutory provisions, the judicial precedents cited and also the relevant pleadings and those items of evidence to which our attention was drawn by the respective counsel during their submissions. We are unable to accept the argument of Mr. T.A. Shaji that in order to establish a ground for eviction under Section 11(4)(i) it is necessary to show that exclusive possession of the tenanted building has been unauthorisedly transferred to the alleged sub-lessee and also to establish that there is landlord tenant relationship between the tenant and the alleged sub-lessee. A careful reading of Clause (i) of Sub-section (4) of Section 11 will show that what is made objectionable and a ground for eviction under that Sub-section is transfer of the tenant's rights under the lease without the consent of the landlord or subletting of the entire building or any portion thereof unless authorised in that regard by the terms of the lease. The ingredients of unauthorised subletting and transfer of tenant's rights under the lease necessary under Clause (i) of Sub-section (4) of Section 11 are in the alternative and are not cumulative. Subletting being a clandestine arrangement between the tenant and the subtenant the terms which will be known to them only of it were to be insisted that the landlord will have to establish a landlord tenant relationship between the tenant and the sub-tenant, for succeeding in a petition wherein the ground under Clause (i) of Sub-section (4) of Section 11 is invoked, the task of the landlord will be extremely difficult. This is why the Legislature has provided the ingredients of the Sub-section in the alternative. Here again it may be. noticed that it is not necessary that the transfer of the tenant's rights under the lease should be in respect of the entire building. It is sufficient that the tenant transfers his rights under the lease in respect of a portion of the building. The most important right under the lease from the tenant's point of view is the right to possess and enjoy the building. This is why transfer of possession of the building is always understood in the context of the ground under Section 11(4)(i) as transfer of right under the lease entailing liability for eviction of the tenant if such transfer is unauthorised.
6. Having considered this case, we are of the view that the finding of the Rent Control Appellate Authority, which under the statutory scheme is the final authority on facts, that the first respondent has transferred possession of at least a portion of the building exclusively to the second respondent in the RCP is not illegal, irregular or improper. It is certainly true that mere presence of somebody other than the tenant in the premises will not arouse a presumption that the premises or a portion thereof is exclusively transferred to the person present. But in the instant case what has become evident is not mere presence of the second respondent in the RGR Instead, it has become evident that the second respondent is in occupation of a portion of the building and is admittedly carrying on typing job works. The second respondents has his own table and chair and he is receiving orders from the customers for job works, executing those orders and he is evidently the only one person who is stipulating to the customers, the charges for the works executed and collecting from them such charges. On scanning the evidence and reading the orders of the Rent Control Court and the Appellate Authority, it would appear as if the parties were more at issue regarding the photostat copying business which used to be carried on by the tenant previously and had been admittedly stopped at the time when the statutory intimation notice under Section 11(4)(1) was issued, but was restarted by the time the RCP was instituted. According to us, even leaving alone the controversies over the photostat business and the ownership over the photostat machine noticed by the Advocate Commissioner and over the genuineness of Ext.B1 sale letter issued significantly after the statutory intimation notice was sent to the tenant, there is sufficient material in the case to justify the finding that there is objectionable transfer of exclusive possession of atleast a portion of the subject building by the tenant to the alleged subtenant.
7. The tenant does not dispute the regular presence of the alleged subtenant in the schedule building. The tenant being the person legally entitled to possession by virtue of the letting in his favour is bound to explain the jural relationship between him and the alleged subtenant who has no privity of contract with the landlord or any legal right to be physically present every day and carry on typing works on a regular basis as is presently doing. The tenant who seems to be aware of his duty to explain takes the definite stand that the alleged subtenant is his employee. As rightly noticed by the Rent Control Appellate Authority not even an iota of evidence is adduced by the tenant to substantiate the correctness of that explanation. The monthly collections from the typing works being executed from the room itself must be substantial since the tenant's claim is that every day the alleged subtenant is being paid at the rate of Rs. 150/- The income from the photostat copying works also should be considerable since the building is situated in close proximity tot he District Collectorate and the Court Complex at Kollam. The tenant should be keeping accounts regarding the total collections from the activities carried on in the building if as a matter of fact it is he who is carrying on them. Those accounts should necessarily reflect the daily payment of remuneration to the alleged subtenant if the relationship between the tenant and the alleged subtenant is that of employer and employee as contended. The non-production of any document which would atleast indicate that the relationship between the tenant and the alleged subtenant is that of an employer and employee is a circumstance justifying drawal of adverse inference against them. We find that the findings entered by the Rent Control Appellate Authority are founded on evidence oral and documentary and circumstantial which obtains in this case. The evidence on record, according to us, will certainly justify a finding that exclusive possession of, if not of the whole building, atleast of a portion of the building has been transferred by the tenant to the alleged subtenant and that the tenant has miserably failed in establishing that the jural relationship between him and the alleged subtenant is that of employer and employee.
8. During the cross-examination of PW1 the landlord, a specific question was put to him. The question was whether the landlord is prepared to withdraw from the rent control petition if the alleged subtenant is sent away from the premise. The landlord answered the question in the negative. According to the landlord the tenant having sublet once in violation of the terms of the lease, cannot be trusted any longer and there is every likelihood that he will sublet once again once the RCP is withdrawn. The above question by the tenant and the answer given by the landlord, in our opinion, has roots in the statutory provision, viz, the proviso to Clause (i) of Sub-section (4) of Section 11. Under the proviso, it is necessary that before filling a rent control petition for the fist time by a landlord on the ground under Section 11(4)(i) against his tenant, the landlord shall issue notice intimating the tenant of the contravention of the condition of the lease that the tenant is not entitled to sublet. It is open to the tenant to terminate the sublease and send away the subtenant within thirty days of receiving the above said intimation notice. It if is so done, the ground under Section 11(4)(i) will not be available to the landlord. Thus it is always open to a subletting tenant to avert eviction under Section 11(4)(i) by terminating the sublease or the unauthorised transfer by sending away the subtenant or by re-assuming possession of the transferred premises within the statutory period of thirty days. The Legislature is also mindful of the possibility of the tenant subletting again. This is why it is clearly provided under the proviso that if the application for eviction under Section 11(4)(i) is to be filed for a second time by a landlord against his tenant, the statutory intimation notice under the proviso to Section 11(4)(i) is not necessary. In the instant case, the question put to the landlord sufficiently indicates that the sublease or unauthorised transfer subsisted at the time of trial and the tenant by putting the question was only making a last ditch endeavour to avert order of eviction. But the tenant having not terminated the sublease or unauthorised transfer within the period of thirty days of receiving the notice cannot avoid the inevitable order of eviction by offering to terminate or by actually terminating the sublease or unauthorised transfer thereafter.
The result of the above discussion is that the revision fails, confirming the order of the Rent Control Appellate Authority we dismiss the RCR. However, considering the fervent appeal of Mr. T.A. Shaji we direct the execution court to defer delivery of the petition schedule building till 27-11-2009 subject to the following conditions.
Both the revision petitioners will file affidavits before the execution court undertaking peaceful surrender of the petition schedule building to the respondent on or before 27-11-2009. The first revision petitioner shall discharge arrears of rent, if any, within one month and he will pay the rent which falls due till the date of surrender promptly. The parties are directed to suffer their costs in the RCR.