IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:MR.JUSTICE K.T.SANKARAN,MR. JUSTICE A.M.BABU
14TH DAY OF DECEMBER 2016
OP (RC).No. 133 of 2016 (O)
1.Landlady filed R.C.P.99/2013 before the Rent Control Court, Chavakkad against tenant and sub-tenants. The proceedings reached the final hearing stage. Arrears of rent and sub-lease are the two grounds alleged in the rent control petition. A copy of the petition is Ext P1.
2.Petitioners herein are the sub-tenants. Respondent is the landlady. The tenant is not made a party in this original petition. Petitioners do not dispute the sub-lease. They contend the sub-lease to be not objectionable. They say that it was with the consent of the landlady the sub-lease was made. Ext P2 is a copy of the counter- statement filed by the sub-tenants in the rent control proceedings.
3.The power of attorney holder of the landlady was examined as PW1. The sub-tenants produced a few rent receipts purported to have been issued to them by PW1. PW1 denied the signatures in those rent receipts. Therefore the sub-tenants filed three interlocutory applications, namely, (i) I.A 10064/2016, (ii) I.A 10065/2016 and (iii) I.A 10066/2016. Copies of those applications are Exts P3, P4 and P5 respectively.
4.I.A 10064/2016 was filed to get the evidence re-opened. The evidence was sought to be re- opened to examine one more witness. I.A 10065/2016 was filed requesting to receive witness list after condoning the delay in filing it. The witness is stated to be the tenant of a room in the same building. His examination was sought in order to prove the disputed signatures in the disputed rent receipts. I.A 10066/2016 was filed requesting to issue summons to the said witness.
5.The Rent Control Court dismissed all the applications. The orders in I.A 10064/2016, I.A 10065/2016 and I.A 10066/2016 are Exts P6, P7 and P8 respectively. Two reasons are stated to dismiss those applications. First, the competence of the witness to prove the disputed fact was not shown to the satisfaction of the court. Second, the fact proposed to be proved would have no relevance as the disputed receipts were issued in the name of the tenant.
6.Heard the learned counsel on both sides. Perused Exts P1 to P8.
7.Petitioners herein are admittedly sub- tenants. They say that the sub-lease was not objectionable. According to them, it was with the consent of the landlady the building was sub-let. In order to prove their case, the sub-tenants produced a few rent receipts. They allege that those receipts were signed and issued by PW1 as the power of attorney holder of the landlady. PW1 denied the signatures in those receipts to be his. Therefore, the sub- tenants sought for the examination of a witness to prove the disputed signatures to be those of PW1. Should the sub-tenants be denied such an opportunity is the question.
8.Sub-tenants are certainly not necessary parties in a rent control proceedings between the landlady and the tenant. It is so even in cases where sub-lease is taken as a ground for eviction. But if they are made parties to the proceedings, they are entitled to contest and produce evidence as every party in any litigation could do.
9.The Rent Control Court said that it was not satisfied of the competence of the proposed witness to prove the disputed fact. That was one reason why the Rent Control Court dismissed the applications. The sub-tenants wanted to examine the witness to prove that the signatures in the disputed receipts belonged to PW1. The sub-tenants chose a tenant of the same building to prove the disputed signatures. He was chosen perhaps he might have received rent receipts signed by PW1. The competence of a witness to prove a fact is normally a matter to be decided after reading his evidence and not before his examination unless his incompetence is so patent.
10.Section 67 of the Indian Evidence Act reads thus:-
“If a document is alleged to be signed
or to have been written wholly or in
part by a person, the signature or the
handwriting of so much of the document
as is alleged to be in that person’s
handwriting must be proved to be in his
In view of Section 67 it is obligatory for the sub-tenants to prove the disputed signatures to be the signatures of PW1. They only sought an opportunity to prove the disputed signatures. Section 67 which deals with proof of signature and handwriting does not state the manner in which it should be proved. It may be proved by any kind of evidence. The signature of a person may be proved by another person who is acquainted with the signature of the former. That precisely was what the sub-tenants wanted to attempt. They should be afforded the opportunity. The competence of the witness to prove the disputed signatures may be assessed after his evidence is recorded. Let not it be decided before he goes to the witness box. The evidence need not be shut out. We are unable to accept the first reason given by the Rent Control Court to dismiss Exts P3 to P5 applications.
11.The fact sought to be proved by the sub- tenants did not appear to the Rent Control Court to be relevant. That was the second reason given for dismissing the applications. The Rent Control Court said that it was not relevant since the disputed receipts stood in the name of the tenant. The Rent Control Court did not state any other reason for holding it to be not relevant. We are unable to agree with that reasoning too. The receipts issued in the name of the tenant were produced by the sub- tenants. The receipts might have gone into the hands of the sub-tenants through the hands of the tenant. PW1 might have issued the receipts to the sub-tenants when rent was received from them. Possibilities are many. How did the sub-tenants get the receipts is certainly a relevant question if the receipts were really issued by PW1. That question too can be decided only after collecting the whole evidence in the case. Let the evidence come first. The second reason given by the Rent Control Court is also not acceptable.
12.We are convinced that both the reasons given by the Rent Control Court for rejecting the applications are not convincing. It appears that the Original Petition deserves to be allowed. But the learned counsel for the landlady does not allow us to stop this judgment here.
13.The learned counsel has cited several judicial pronouncements to contend that collection of rent from the sub-tenants and issuance of receipts to them are not fatal to a proceedings seeking eviction on the ground of sub-lease. We are not referring to those decisions. For, we are of the view that the circumstances under which rent was collected from the sub-tenants and receipts were issued to them are also matters for decision after collection of the entire evidence. It is not a matter to be decided at any time before that.
14.But we propose to mention two of the decisions cited by the learned counsel. The decisions are (i) Tresa v. Joseph (2005 (4) KLT 435) and (ii) Raghavan v. Sreedhara Panicker (2001 (1) KLT 772). These two decisions are also cited to highlight that collection of rent from a sub-tenant is not fatal to a claim for eviction on the ground of sub-lease. But we are on another point. 15.We may first extract Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act (‘the Act’ for short).
(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.
16.A Division Bench of this Court in Tresa’s case (supra) interpreted Section 11 (4)(i) as under:
“S.11(4)(i) of the present Act consists
of two parts; one relating to the
transfer of the tenant’s rights under
the lease and the other relating to the
sub-lease. Transfer of the tenant’s
right if made without the consent of
the landlord, S.11(4)(i) would be
attracted. If the tenant sub-lets the
entire building or any portion thereof,
if the lease does not confer on him any
right to do so, then also S.11(4)(i) is
attracted. The expression “without the
consent of the landlord” relates only
to the transfer of right under the
lease; it does not apply to the sub-
lease. As regards sub-lease to be not
objectionable, the lease must confer on
the tenant a right to do so. A consent
letter issued by the landlord after the
lease does not entitle the tenant to
sub-let so as to avoid the application
of S.11(4)(i) of the Act. Even if
consent is granted by the landlord
after the lease, the landlord is
entitled to apply under S.11(4(i), if
the lease does not confer on the tenant
a right to sub-let.”
This interpretation may favour the landlady. For, the sub-tenants do not have a case that the lease permitted the tenants to sub-let the premises. Their case is only that the lessee consented to the sub-lease.
17.Before the pronouncement in Tresa’s case, another Division Bench in Raghavan’s case (supra) held as follows at paragraphs 3 and 4 of the judgment :
3. “S.11(4(i) of the Act provides
that a tenant is liable to be
evicted if, after the commencement
of the Act, the tenant, without the
consent of the landlord, transfers
his right under the lease or sublets
the entire building or any portion
thereof, if the lease does not
confer on him the right to do so.
The two circumstances in which a
subletting by a tenant does not lead
to an order for eviction under S.11
(4)((i) of the Act, are the
circumstance where the lease or the
instrument of lease confers on him
the right to do so and the
circumstance where the subletting is
made with the consent of the
landlord. According to us, in a case
where the lease does not authorise
the tenant to sublet, the consent of
the landlord contemplated by the
section is a consent obtained prior
to the subletting or a consent for
the subletting. The Section speaks
of a transfer of the right under the
lease or subletting without the
consent of the landlord as a ground
4. “On a proper reading of the
provision, it is clear that the
subletting should be with consent,
to escape the consequences envisaged
by that provision. In other words,
the consent must precede the
The interpretation in Raghavan’s case (supra) may favour the sub-tenants. For, their case is that the very sub-lease was made with the consent of the landlady.
18.There is an apparent conflict between the two Division Benches in interpreting Section 11(4)(i) of the Act. But we do not propose to make a request to refer the question to a larger bench. For, this is not a matter to be decided now. It is a matter to be considered while deciding the rent control petition. It should not appear that we simply skipped a point which was brought to our notice by the learned counsel for the landlady. That is the sole reason why we have referred to Tresa’s case and Raghavan’s case in this judgment.
In the result, the Original Petition is allowed. No costs. Exts P6, P7 and P8 orders are set aside. I.A 10064/2016, I.A 10065/2016 and I.A 10066/2016 on the file of the Rent Control Court stand allowed. Evidence is re-opened. The witness list is received. The Rent Control Court shall issue summons to the witness.