IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 RCRev..No. 291 of 2009() ------------------------ RCA.113/2008 of RENT CONTROL APPELLATE AUTHORITY ,ERNAKULAM RCP.10/2006 of RENT CONTROL COURT, KOCHI. .................... REVN. PETITIONERS/APPELLANTS/RESPONDENTS ------------------------------------------------------------ 1. SMT.E.K.RAJAMMA, AGED 75, W/O. LATE KAMALADHARAN, RESIDING AT KOOTHAPPILLIL HOUSE, PONNURUNNI, VYTTILA, KOCHI-19. 2. SHEEBA DILEEP, AGED 47, W/O. K.K.DILEEP, RESIDING AT KOOTHAPPILLIL HOUSE, PONNURUNNI, VYTTILA, KOCHI-19. 3. M/S. GOLDEN AGENCIES, A REGISTERED PARTNERSHIP FIRM, REPRESENTED BY ITS PARTNER E.K.RAJAMMA, KOOTHAPPILLIL HOUSE, PONNURUNNI, VYTTILA, KOCHI-19. BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.ABHILASH NARAYAN SMT.R.LEELA SMT.N.K.SHEEBA SRI.JIMMY N.JOSEPH RESPONDENT(S): RESPONDENTS/PETITIONERS -------------------------------------- 1. ROSALINE JUSTIN, AGED 54 YEARS, D/O. AUGUSTINE, KADUNGAPARAMBIL HOUSE, THOPPUMPADY, NOW RESIDING AT 'SWAPNA', PALARIVATTOM, KOCHI-25. 2. LEONA RITA BABU, AGED 52 YEARS, D/O. AUGUSTINE, KADUNGAPARAMBIL HOUSE, THOPPUMPADY, KOCHI-5. 3. VALSA REINHART, AGED 46, D/O. AUGUSTINE, NOW RESIDING AT PALLATH HOUSE, PERUMANOOR, KOCHI-15. SRI.C.T.JOSEPH FOR CAVEATOR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA 3515/2009 IN RCR 291/2009 DISMISSED 16/12/2009 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- K.SURENDRA MOHAN, JUDGE. PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.No. 291 OF 2009 ------------------------ Dated this the 16th day of December, 2009 O R D E R Pius C.Kuriakose, J. The tenants are in revision being aggrieved by the order of eviction concurrently passed by the Rent Control Court and the Appellate Authority on the ground of arrears of rent under Section 11(2) (b) and bona fide need for own occupation under Section 11(3) of Act 2 of 1965. The parties will be referred to as the landlady and the tenants. The allegation of the landlady in the context of ground under Section 11(2) (b) was that the contract rent is Rs.1,000/- per month and that the same is in arrears from 1-2-2006 and that in spite of a statutory demand notice, the tenants did not pay the same. The above allegation was disputed so also the contract rent was disputed and it was contended that the same is only Rs.600/- per month. The landlady's case in the context of the eviction ground under sub section (3) of Section 11 was that the landlady and her husband RCR.No.291/2009 2 are doing business in shares for the last several years and that they wanted to continue the business in a more suitable building. Hence it was urged that the petition schedule building is needed bona fide for occupation by the landlady and her husband, so that they can conduct share trading business. The tenants disputed the bona fides of the need. They also claimed that they are entitled to the protection of the second proviso of sub section (3) of Section 11. Relying on the first proviso to sub section Section (3) of Section 11, it was contended that the RCP is liable to be dismissed since the landlady was already in vacant possession of two rooms viz. rooms having door numbers 16/1688 & 16/1692. The contention was that in the absence of the said reason justifying the order of eviction, the eviction order would not be passed even if the need is found to be bona fide. The Rent Control Court enquired into the matter and at trial the evidence consisted of Exts.A1 to A17 and the oral testimonies of PW1 landlady and PW2 landlady's husband and RW1 the tenant. The Rent Control Court on evaluating the evidence came to the conclusion that the rent was in arrears as alleged by the landlady and passed order of eviction under Section 11 (2) (b). RCR.No.291/2009 3 Similarly, the Rent Control Court also found that the need projected by the landlady was bona fide. It was noticed that the landlady came to have possession of the building having door number 16/1692 during the pendency of the rent control proceedings. However, according to that court non occupation of that building by the landlady was not a circumstance indicative of absence of bona fide since that building was closest in proximity to the retail outlet of the beverages corporation and also since the road frontage for that building unlike that of the petition schedule building was less. It was therefore held that the petition was not liable to fail by virtue of the 1st proviso to Section 11 (3). It was also held that the tenants had failed in establishing that they satisfied either of the ingredients of the second proviso to sub Section (3) of Section 11. Accordingly, the Rent Control Court passed the order of eviction under sub Section (3) of Section 11. 2. The tenants preferred an appeal to the Rent Control Appellate Authority. The Appellate Authority reappraised the evidence and practically concurred with all the conclusions of the Rent Control Court except to the extent the same pertain to the RCR.No.291/2009 4 finding regarding the contract rent. The Appellate Authority found that the contract rent is Rs.600/-. The order of eviction passed by the Rent Control Court was confirmed with the above modification. 3. In this revision under Section 20, the tenants have raised various grounds. Assailing the judgment of the Appellate Authority, Sri. Sunil Nair Palakat, learned counsel for the revision petitioners/tenants submitted on 7/12/2009, when we considered the RCR for admission, that in the rent control appeal additional documents were produced for showing that the building having door numbers 1688 and 1692 were available with the landlady under her vacant possession even at the time when the landlady was allegedly harbouring the bona fide need. The learned counsel submitted that the Appellate Authority was not inclined to receive those documents in evidence. According to the learned counsel, the power of the Appellate Authority to admit evidence was co-terminus with that of the Rent Control Court and was not circumscribed by the limitations of Rule 27 of Order 41 CPC. Being impressed prima facie by the above submission, we passed the following order on 7/12/2009. RCR.No.291/2009 5 “The petitioners are directed to produce before this court for perusal certified copy of the Property Tax Assessment Register maintained by the Corporation of Kochi, pertaining to the buildings having Door Nos. 1688,1689,1691 and 1692 in Division No.16 of the Corporation relating to the period subsequent to 31/3/2005. If the petitioners apply for certified copy, the Secretary of the Corporation will issue certified copy upon payment of usual charges by the petitioners acting on the basis of this order. Post on 14/12/2009. In the meanwhile, the Execution Court is directed to adjourn delivery of the petition schedule building presently scheduled for 13/12/2009 by ten days from that day. “ 4. On 14/12/2009, we heard Sri.Sunil Nair Palakat, learned counsel for the revision petitioner and Sri.C.T.Joseph, learned counsel, who had lodged a caveat on behalf of the landlady in detail. After hearing, we directed the learned RCR.No.291/2009 6 counsel for the landlady to seek instructions from the landlady as to when the tenant presently in occupation of room having door number 16/1688 was inducted into that room and also to make available for our perusal documents which will indicate that the above tenant was inducted much prior to the institution of the Rent Control Petition as submitted by him. Such an order was passed by us since we thought, on the basis of the submissions addressed, that the only circumstance which can have some bearing is availability of building having door number 16/1688 with the landlady at the time of institution of the RCP. 5. Today, Sri.C.T.Joseph, learned counsel for the respondents has made available for our perusal the original of the lease deed dated 15/3/2003 executed in favour of landlady by Sri.I.A.Joshy. The learned counsel also made available for our perusal lease deed in respect of room having door number 16/1688. He also made available the originals of the lease deed in respect of room having door number 16/1689 and also the lease deed in respect of the building having old door number 16/1560 corresponding to 16/1691. He has also made available a sketch showing relative size and position of five RCR.No.291/2009 7 rooms forming part of the large building a part of which is the petition schedule premises. The Rent Control Court and the Appellate Authority did notice that building having door number 16/1692 had come to the vacant possession of the landlady during the pendency of the rent control petition. However, those courts took the view that the landlady had excellent reasons for insisting on getting possession of the petition schedule building. The reasons, According to those authorities, were that unlike the petition schedule building, the building having door number 16/1692 was a very narrow one having much lesser road frontage. The other reason mentioned was that the above building is closest in proximity to the retail outlet of the beverages corporation. The argument of Sri.Sunil Nair was that even the petition schedule room is not far away from the retail outlet. But the fact remains that the building having door number 16/1692 is the nearest. The second reason stated by the authorities below, in our opinion, is a stronger reason. The evidence will also indicate that building having door number 16/1692 unlike the petition schedule building is a narrow one with lesser road frontage. In view of these reasons, the RCR.No.291/2009 8 landlady was justified in insisting that getting eviction of the petition schedule building. 6. The other submission of Sri.Sunil Nair, which had some appeal to us, was his submission that the building having door number 16/1688 was available under the vacant possession of the landlady at the time of filing of the RCP and that her action in letting out that building is indicative of absence of bona fides of the need projected. A perusal of the lease deed dated 15/3/2003 executed by Sri.I.A.Joshy in respect of the building having door number 16/1688 will show that Sri.Joshy was inducted into that building way back in 15/3/2003, which is at least three years prior to the institution of the RCP. Sri.Sunil Nair did raise an argument that name of the tenant in occupation of that room is Joseph and not I.A.Joshy. We are not impressed. We accept the submission of Sri.C.T.Joseph that the correct name of the tenant in occupation of the room having door number 16/1688 is Sri.I.A. Joshy and that the tenancy is governed by the lease deed dated 15/3/2003. 7. In this jurisdiction under Section 20, this court is not expected to make reappraisal of the evidence and substitute our RCR.No.291/2009 9 conclusions for the conclusions on facts arrived at by the statutory fact finding authorities, especially when those conclusions are founded on evidence. Having scanned the order of the Rent Control Court and the judgment of the Appellate Authority, we are of the view that the finding regarding the arrears of rent and also regarding the bona fides of the need projected and also regarding the tenant's eligibility for protection of the second proviso to sub Section (3) of Section 11 and also regarding the implication of the first proviso to sub section(3) of Section are all reasonable findings founded on evidence. We do not find any warrant for invocation of the revisional jurisdiction under Section 20 since it cannot be said that the judgment of the Appellate Authority is tainted by any irregularity, illegality or impropriety warranting corrections. 8. As his last plea, Sri.Sunil Nair Palakat requested that tenants be granted at least one year's time to surrender the premises. This request was opposed by Sri.C.T.Joseph. However, we feel, on the facts and circumstances attending on this case, that there is justification for granting a reasonably long period to the tenants to surrender the premises. Accordingly, RCR.No.291/2009 10 even if we dismiss the RCR confirming the judgment of the Appellate Authority, there will be a direction to the Execution Court not to order and effect delivery of the petition schedule building till 30/6/2010 subject to the following conditions; The first revision petitioner on her behalf and also on behalf of the other petitioners will file an affidavit before the Execution Court within three weeks from today undertaking to discharge arrears of rent, if any at the rate of Rs.1,000/- per month and undertaking further to pay occupational charges to the respondents at the rate of Rs.1,000/- per month till 30/6/2010. It will also be undertaken through the same affidavit that she will peacefully surrender the possession of the petition schedule building to the respondents on or before 30/6/2010. It is made clear that the revision petitioners will be entitled RCR.No.291/2009 11 for the benefit of time granted under this judgment only if the affidavit as directed above is filed on time. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk