IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 RCRev..No. 281 of 2009() ------------------------ RCA.6/2002 of RENT CONTROL APPELLATE AUTHORITY, KOLLAM RCP.3/1994 of RENT CONTROL COURT, PUNALUR .................... REVISION PETITIONER(S): -APPELLANT NO.3(3RD RESPONDENT IN THE O.P.) & LEGAL REPS. OF DECEASED 4TH APPLT(4TH COUNTER PETITIONER IN THE O.P.) ---------------------------------------------------------------------- 1. V.K.PREMNATH, LEKSHMY STORES, P.M.C. X/222, MARKET ROAD, PUNALUR, KOLLAM DISTRICT. 2. KAMALAMMA, W/O.LATE MURALEEDHARAN NAIR, P.M.C. X/223, MARKET ROAD, PUNALUR, KOLLAM DISTRICT. 3. PRADEEP KUMAR, S/O.LATE MURALEEDHARAN NAIR,P.M.C. X/223, MARKET ROAD, PUNALUR, KOLLAM DISTRICT. 4. VINOD KUMAR, S/O.LATE MURALEEDHARAN NAIR P.M.C. X/223, MARKET ROAD, PUNALUR, KOLLAM DISTRICT. BY ADV. SRI.RAM MOHAN.G. SRI.G.P.SHINOD RESPONDENT(S):-ADDL.R2-6(LEGAL REPRESENTATIVES OF ORIGINAL PETITIONERS): ------------------------- 1. NANCY VARGHESE, VADAKKEKATTUR HOUSE, CHEMMANTHOOR MURI, PUNALUR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. 2. VINOD V.VARGHESE, VADAKKEKATTUR HOUSE, CHEMMANTHOOR MURI, PUNALUR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. 3. VIPIN V.VARGHESE, VADAKKEKATTUR HOUSE, CHEMMANTHOOR MURI, PUNALUR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. 4. VIMAL V.VARGHESE, VADAKKEKATTUR HOUSE, CHEMMANTHOOR MURI, PUNALUR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. 5. ALFA VARGHESE, VADAKKEKATTUR HOUSE, CHEMMANTHOOR MURI, PUNALUR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. ADV. SRI.T.V.GEORGE FOR R1-R5 SRI.JIMMY GEORGE (THADATHIL) SRI.R.D.SHENOY, SENIOR ADVOCATE THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NO.3438/2009 IN RCR NO.281/2009 DISMISSED 5/7/2010 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- C.K.ABDUL REHIM, JUDGE. PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No. 281 OF 2009 ------------------------ Dated this the 5th day of July, 2010 O R D E R Pius C.Kuriakose, J. The tenants being the legal representatives of some of the deceased tenants are before this Court once again invoking the revisional jurisdiction under Section 20 of Act 2 of 1965. R.C.P No. 3/1994 was instituted before the Rent Control Court, Punalur by one C.K.Umman and C.O.Varghese father and son, now no more survived by respondents 1 to 5 in this revision petition. In the Rent Control Petition, eviction was sought in respect of buildings described in schedules B, C ,D and E which are different portions of a larger building described in schedule 'A'. The respondents in the RCP were one G.Yohannan, Alexander John, V.K.Premnath, and Sri.P.K.Muraleedharan Nair. The present revision petition is filed by Sri.V.K.Premnath and the legal heirs of Sri. P.K.Muraleedharan Nair. Sri.V.K.Premnath is in possession of the building described in Schedule D and revision petitioners 2 to 4 are presently in possession of the building described in schedule E originally under the possession of RCR.No.281/2009 2 Sri.P.K.Muraleedharan Nair. The eviction ground invoked were grounds of arrears of rent under Section 11 (2)(b), bona fide need for own occupation under sub section (3) of Section 11, additional accommodation under Section 11(8) and reconstruction under Section 11 (4) (iv). All the tenants contested the RCP. But, as matters obtain now, the buildings described in schedule B & C have been surrendered to the landlord as contest in respect of those buildings was given up by the respective tenants. 2. On the basis of the pleadings and the evidence that came on record, the Rent Control Court formulated seven points for consideration, which are as follows; i). Whether the 2nd petitioner bonafide needs the petition scheduled B to E shop rooms for his own occupation? ii). Whether the 2nd petitioner requires additional accommodation for his business purpose as claimed? iii). Whether the counter petitioners are depending for their livelihood on the income derived from the business conducting in the scheduled shop rooms? iv). Is there any suitable building available in the locality to RCR.No.281/2009 3 shift the business of the counter petitioners? v). Whether the scheduled building needs reconstruction for the reasons stated by the petitioner and the 2nd petitioner requires bonafide to reconstruct it and has ability to do it as claimed by him? vi). Is there any rent in arrear from the counter petitioners as claimed by the petitioners? vii). Relief and cost? 3. The evidence at trial by the Rent Control Court consisted on the side of the landlords of Exts.A1 to A12 and oral testimonies of PWs1 to 9. The counter evidence consisted of oral testimonies of CPW-1, CPW-2 and two witnesses as CPW 3 and CPW4 and Ext. B1 document. Exts.C1 to C3 and X1 to X2 were the Court exhibits. On evaluation of the evidence, the Rent Control Court would conclude that the landlords were successful in establishing the existence of all the grounds for eviction invoked by them in the RCP. Accordingly, the order of eviction was passed on the basis of all the grounds invoked in the RCP. 4. Against the eviction order, appeal was preferred by Sri. G.Yohanan, V.K.Premnath and Sri.P.K.Muraleedharan Nair RCR.No.281/2009 4 respondents in the RCP. Sri.G.Yohanan passed away and the legal representatives of Sri. G.Yohanan were impleaded as additional appellants in the RCA. The Appellate authority considered the appeal. It was submitted before the Appellate Authority that the order of eviction passed under Section 11(2) (b) and 11(8) need not be confirmed. The Appellate Authority re appreciated the evidence and concurred with the conclusions of the Rent Control Court to the extent they pertain to all the grounds except ground under Section 11(2)(b). In the result, the RCA was dismissed. 5. In fact during the pendency of the RCA, the second petitioner in the RCP passed away. His legal heirs were impleaded as additional respondents 2 to 6 in the RCA. The Rent Control Appellate Authority dismissed the RCA No. 6/2002 for default on 28/1/2008. Subsequent to the above dismissal, Sri.P.K.Muraleedharan Nair, who was the appellant No. 3 in RCA, passed away on 4/2/2008. I.A. No.264/2008 was filed by some of the appellants for rehearing of the appeal which was dismissed for default. Pending I.A. NO. 264/2008, I.A. NO. 265/2008 was filed by one of the appellants seeking RCR.No.281/2009 5 impleadment of the legal heirs of late P.K.Muraleedharan Nair as additional appellants. I.A. No.264/2008 was dismissed for default and the above impleadment application was consequently closed by the Appellate authority. Thereafter, some of the appellants filed I.A. No.271/2009 for restoration of the re-hearing application. They also filed I.A.No.272/2009 for condoning the delay caused in filing I.A. No.271/2009. Complaining that there was delay on the part of the Rent Control Appellate Authority in considering I.A. Nos. 271/2009 & 272/2009, the present revision petitioner filed W.P.(C) No. 8547/2009 before this Court. This Court disposed of the writ petition at the admission stage itself directing the Rent Control Appellate authority to consider and dispose of I.A. Nos. 271/2009 & 272/2009 on their merits. Pursuant to the judgment in the writ petition, the Rent Control Appellate authority passed a common order dismissing both I.A. Nos. 271/2009 & 272/2009. The present revision petitioners preferred R.C.R. No. 91/2009 challenging the common order dated 31/3/2009 dismissing the I.A. Nos. 271 & 272/2009. This Court allowed the above RCR by judgment dated 3-4-2009 imposing a few conditions and set aside the order dismissing the RCR.No.281/2009 6 two I.As. This Court relegated the RCA back to the Rent Control Appellate Authority to the extent the same pertains to the buildings described in schedules D & E in the RCP. The conditions imposed by this Court were duly complied with. The RCA was heard afresh and thereafter, learned Appellate Authority dismissed the RCA on merits. 6. R.C.R. No.176/2009 was preferred against the judgment of the Appellate Authority in RCA No.6/2002 by the present revision petitioners. Impressive arguments were addressed before this Court in R.C.R. No. 176/2009 on behalf of the present revision petitioners and those arguments were countered on behalf of the landlords by their counsel. This Court found, by judgment dated 19/8/2009 that the finding of the Rent Control Court and the Appellate Authority that the condition of the building warrants reconstruction and that the landlords are possessed of requisite plan and licence for carrying out the reconstruction is correct. This Court found further that as the need projected by the landlords is one for own occupation after reconstruction, the apposite ground, which is applicable to the case, is ground under sub section (3) of Section 11. This Court RCR.No.281/2009 7 noticed the judgments of the Supreme Court taking the view that a combined order of eviction under sub section (3) of Section 11 and sub section (8) of Section 11 cannot be passed and also the subsequent event of the landlords shifting their business during the pendency of the proceedings held that in the fact situation which obtained in the case the apposite eviction ground available to the landlord can only be the ground under sub section (3) of Section 11. Regarding the findings of the Rent Control Court and the Appellate Authority entered in the context of the second proviso to sub section (3) of Section 11, this Court held that the above findings, which are against the tenants, are not liable to be interfered at all. But, it was noticed that the crucial question, whether the claim of the landlords for own occupation under sub section (3) of Section 11 is bona fide, was not independently considered by the Appellate Authority, whose duty was to reappraise the pleadings and evidence and decide whether the findings entered by the Rent Control Court in that context are legally and factually correct. This Court, Accordingly, set aside the judgment of the Appellate Authority and remanded the RCA back to the Rent Control Appellate RCR.No.281/2009 8 Authority for taking a fresh decision on the only question as to whether the claim of the landlords for own occupation under sub section (3) of Section 11 is bona fide and to take a fresh decision regarding the liability of the tenants to be evicted under sub section (3) of Section 11. Noticing that the matter was an old one and that the remand order had become necessary to a considerable extent due to the failure of the Appellate Authority to discuss the bona fides of the need projected by the landlords independently, the Appellate Authority was directed to give top priority to the RCA and pass revised judgment at the earliest. It is pursuant to the above judgment of this Court that the Appellate Authority passed the impugned revised judgment in R.C.A. No. 6/2002. 7. The revision petitioners in this revision assail the judgment of the Appellate Authority on various grounds. It is urged that the learned Appellate Authority passed the impugned judgment completely ignoring the specific mandates in the remand judgment passed by this Court in R.C.R. No.176/2009 and for that reason itself it can be unhesitatingly concluded that the appellate authority's judgment is illegal , irregular and RCR.No.281/2009 9 improper as envisaged by Section 20 of Act 2 of 1965. It is urged that the Appellate Authority was in utter confusion as to th scope of the remand judgment passed by this Court and hence ventured upon the unnecessary exercise of considering the liability of the tenants to suffer order of eviction under sub section (8) of Section 11 and also the question whether the tenants are entitled to the protection of the second proviso to sub section(3) of Section 11. It is urged that, as a direct result of the confused state of the learned Appellate authority's mind while reconsidering the appeal, serious prejudice has been occasioned to the tenants as the crucial issue remanded could not be examined by the Appellate Authority through the proper perspectives. 8. Extensive submissions were addressed before us by Sri.G.Ram Mohan, learned counsel for the revision petitioners. The learned counsel submitted that the learned Appellate authority has shown disregard for the directions of this Court in the remand judgment in RCR NO.176/2009. According to him, it is doubtful whether the Appellate authority has read through the judgment of this Court in RCR No. 176/2009 as was expected by RCR.No.281/2009 10 that authority. According to Mr.Ram Mohan, when this Court directed the Appellate authority to confine the enquiry to the question whether the need under sub section (3) of Section 11 is bona fide and when this Court notices that the Appellate Authority considered so many other questions which are not at all relevant in view of the judgment of this Court, it is necessary that the Appellate Authority be directed to pass a revised judgment strictly in conformity with the directions of this Court in RCR No.176/2009. According to the learned counsel, this court may not justified in deciding the issue which was relegated to the Appellate authority by judgment in RCR NO.176/2009 by this Court itself, as such a course will cause prejudice to the tenants who have the right to have the issue which is essentially one of fact decided by the statutory two tier hierarchy. 9. Sri.R.D.Shenoi, learned senior counsel for the respondents would fairly concede that the learned Appellate Authority was in some confusion as to what was the scope of order of remand passed by this Court in R.C.R. No.176/2009. According to him the respondents, who instituted the Rent RCR.No.281/2009 11 Control Petition more than 16 years ago hoping that they will get relief within a short period of time if not within the statutory time frame of four months itself, may not be driven back once again to the Appellate authority for relief. According to Mr.Shenoy, the revisional jurisdiction of this Court under Section 20 enables this Court to examine even the propriety of decision taken by the Appellate authority and is certainly a jurisdiction much wider than the ordinary civil revisional jurisdiction under Section 115 of the CPC. The learned senior counsel highlighted that the tenants themselves admit that the landlords are leading business men of the locality and that in expectation of the accomplishment of the projected proposal putting up a new building in place of the existing old building (a part of which are the buildings which are subject matter of the present revision), they have taken another building in lease. So, the situation is that the landlords are presently conducting most of their business in rented building. Under such a situation, the bona fides of the need projected by the landlords in the RCP can be even presumed by this Court. In the instant case, despite searching cross examination, on the vital aspect regarding the bona fides of the RCR.No.281/2009 12 need, PW1 stood firm and his evidence was not shaken at all. No useful purpose is going to be served from the revision petitioners' point of view by relegating the issue once again back to the Rent Control Appellate Authority except perhaps they may be getting some more time. Mr.Shenoy submitted that though the landlords had been waiting for 16 years if it comes to that they may be prepared to wait for a few months more. But their only request is that this Court decides the issue finally. 10. We have very anxiously considered the rival submissions addressed at the Bar. We have scanned the impugned judgment of the Appellate Authority and the order of the Rent Control Court, which was confirmed by the Appellate Authority. We have gone through all other relevant records including the previous judgment of this Court in RCR No. 176/2009 pursuant to which only the Appellate Authority passed the impugned judgment. We are in agreement with Mr.Ram Mohan when he submits that the learned Appellate authority was not able to comprehend the scope of the remand judgment which was passed by this Court in RCR NO. 176/2009 while taking up the RCA for fresh decision pursuant to that RCR.No.281/2009 13 judgment. We notice that the Appellate Authority under the impugned judgment has considered issues such as the liability of the tenants to suffer order under Sub Section (8) of Section 11, the distinction between the scope of Sub Sections (3) and (8) of Section 11, whether the tenant satisfies the first ingredient of the second proviso, whether the tenants satisfies the second ingredient of the second proviso, which were all absolutely unnecessary and irrelevant in view of the judgment of this court in R.C.A. No. 176/2009. But, we are not inclined to relegate the matter back once again to the Rent Control Appellate Authority as we are convinced that the same will result in denying justice to the respondents/landlords, who, we notice, are entitled for an order of eviction under sub section (3) of Section 11. 11. As already observed, the RCA was relegated to the learned Appellate Authority for deciding the only question whether the need projected by the landlords under sub section (3) of Section 11 was bona fide. Bona fides, being a state of mind is capable of being proved circumstantial or oral evidence only. Such evidence available in the case establishes to the very hilt that the need projected by the landlords under sub section RCR.No.281/2009 14 (3) of Section 11 is a bona fide one. Admittedly, the landlords are leading businessmen in the town and their business has been flourishing evidently. They, who were doing business in a portion of the old building and have shifted their godown, which was in a portion of the petition schedule building and have taken another building for their godown purposes on lease. Despite searching cross examination, PW1 stood firm on his version that his need to occupy the building after reconstruction is a genuine one. We are, therefore, of the view on the basis of the reappraisal of the evidence made by us, that it can be concluded that the need projected by the landlords is bona fide. The other issues as to whether the Rent Control Petition is liable to fail by virtue of any of the proviso to sub section (3) of Section 11 have already become final in favour of the landlord. 12. The result of the above discussion is as follows; The RCR is disposed of confirming the order of eviction passed by the Rent Control Court and the Appellate Authority under sub section (3) of Section 11. The order of eviction passed under sub section (8) of Section 11 is vacated. The parties will suffer their respective costs. RCR.No.281/2009 15 The learned counsel for the petitioners made a last plea that atleast one year's time be granted to the revision petitioners for surrendering the premises. We are not inclined to grant so much of time, we feel that on the totality of the circumstances which attend on this case, there is justification for granting time till 31/1/2011 subject to certain conditions. Even as we dispose of the RCR confirming the order of eviction passed under sub section (3) of Section of Act 2 of 1965 against the revision petitioners, there will be a direction to the Execution Court not to order and effect delivery of the petition schedule building in favour of the respondents till 30/1/2011 subject to the following conditions; i). The first revision petitioner representing himself and the second revision petitioner representing herself and petitioners 3 and 4 will file affidavits before the Execution Court undertaking to give peaceful surrender of the building in their respective possession on or before 31/1/2011 to the respondents. It will be undertaken by them through the same affidavit that arrears of rent, if any, will be discharged by them within one month and occupational charges at the rate of Rs.1,000/- per month will RCR.No.281/2009 16 also be paid till such time as they surrender the premises. ii). The affidavit as directed above shall be filed within three weeks from today. We make it clear that unless affidavits are filed on time as ordered above, the revision petitioners will not get the benefit of time granted under this judgment. Before we part with this case, we record that it was most disturbing to notice that the learned Appellate Authority did not bother to read through the remand judgment passed by this Court, before taking fresh decision in the appeal pursuant to that judgment. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk/ksv