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
handwriting".
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.
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)
PUSHPA JAYAN
Vs
NADEERA AHAMMED
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
handwriting".
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
for eviction".
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
subletting........."
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.
Sd/-
K.T.SANKARAN
Judge
Sd/-
A.M.BABU
Judge
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