IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 RCRev..No. 203 of 2008() ------------------------ RCA.31/2007 OF RENT CONTROL APPELLATE AUTHORITY, PALAKKAD RCP.106/2004 OF RENT CONTROL COURT, PALAKKAD .................... REVISION PETITIONER: APPELLANT/PETITIONER: ----------------------------------------- M.ABDUL WAHAB, S/O.MOIDEEN MADAR RAWTHER, RESIDING AT 2ND STREET, LAKSHMAN NAGAR, COIMBATORE, TAMILNADU. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENT(S): RESPONDENTS/RESPONDENTS: --------------------------------------- 1. K.VEERENDRAKUMAR, S/O.KANNAN. 2. HARI, S/O.KANNAN. 3. BHARATHKUMAR, S/O.KANNAN. 4. PUSHPA, D/O.KANNAN. 5. LATHA, D/O.KANNAN. 6. JYOTHILAKSHMI, D/O.KANNAN ALL ARE RUNNING BUSINESS AT 35/487, MAIN ROAD, OLAVAKKODE, KAVILPAD AMSOM, PALAKKAD TALUK. ADV. SRI.VINOD KUMAR.C FOR R1 & R2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22/03/2011, ALONG WITH RCR NO. 207 OF 2008 RCR NO. 225 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ----------------------------------------------- RCR. Nos. 203, 207 & 225 of 2008 ----------------------------------------------- Dated this the 22nd day of March, 2011 O R D E R Pius C.Kuriakose, J. The tenants of three shop rooms belonging to the same landlord, have file these revision petitions. In all these cases, eviction was sought on the ground of bona fide need for own occupation under sub-section (3) of Section 11. The need projected by the landlord who was aged 75 at the time of commencement of the proceedings was that he who was all along doing business in Coimbatore has closed down that business and wants to come over to Palakkad, his home town for conducting bakery business in the petition schedule rooms. The bona fides of the need was disputed and the tenants also claimed the protection of the second proviso to sub-section (3) of Section 11. The Rent Control Court on appreciating the evidence adduced by the parties came to the conclusion that the need is not bona fide. On the basis RCR. 203/08 etc. -2- of such a conclusion the court did not enquire into the further question whether the tenants are entitled for the protection of the second proviso to sub-section (3) of Section 11 and all the RCPs. were dismissed. The Appellate Authority under the impugned judgment concurred with the Rent Control Court and confirmed the order passed by the Rent Control Court. 2) In this revision various grounds are raised assailing the judgment of the Appellate Authority. Sri. V. Chitambaresh, learned Senior Counsel argued before us that the findings of the statutory authorities concurrent though they may be, are vitiated by illegalities, irregularities and improprieties as contemplated by Section 20 of Act 2 of 1965. According to the learned senior counsel, bona fides of the claim projected by the landlord revision petitioner is essentially a state of his mind. He can manifest the state of his mind only by adducing oral evidence. He himself RCR. 203/08 etc. -3- tendered oral evidence. He was cross-examined at length by the three Advocates appearing for the three tenants. Despite very searching cross-examination, nothing has been brought out as will shatter the credibility of the landlord's version that he wants to come over to Palakkad for doing business in bakery. It is true that the landlord is a fairly old man. But it is not even suggested in cross-examination that due to old age or any ailment the landlord is unable to conduct business. It is true that there has been some inconsistency in the landlord's version as to when he stopped the business at Coimbatore and also as to when the building in Lakshmy Complex was surrendered by him. But it has been proved that the landlord has closed down the business at Coimbatore and even the authorities under the Sales-tax Act have cancelled the licence which had been issued to the landlord. As nothing was brought out in the cross-examination for doubting the correctness of the RCR. 203/08 etc. -4- landlord's version that he will conduct bakery business in the petition schedule building the learned authorities were not justified in coming to the conclusion that the need projected is just a desire which has not ripened into a need involving element of necessity. Mr. Chitambaresh submitted further that it is true that at various stages of the proceedings – the stage of issuance of lawyer notice, pleadings and evidence, there has been some deviation in the case of the landlord as to how the petition schedule rooms will be utilised for the purpose of conducting bakery business. Though in the earlier stage the landlords case was that he will be reconstructing the building, later the landlord would state that it is only renovation and repair that is envisaged. So also, there has been some divergence in the landlord's version as to the involvement of his son in the proposed bakery business. But according to the learned senior counsel, in core matters the landlord was consistent. RCR. 203/08 etc. -5- There was no reason as to why the need should not have been found to be a genuine one. Bona fide need does not mean a pressing absolute necessity without which the landlord will not be able to pull on. Bona fide need only means a reasonable need involving an element of necessity which need not mean to a pressing necessity. Genuineness of the above need is to be gauged by the yardsticks that are applicable to ordinary reasonable people. It is not such yardsticks that have been applied by the learned statutory authorities. Mr. Chitambaresh would submit that in the event this court is inclined to find that the need is bona fide, then there is every justification for holding further that the tenant is not entitled for the protection of the second proviso to sub-section (3) of Section 11. The learned counsel submitted that having regard to the judgment of the Full Bench in Francis v. Sreedevi Varassiar, 2003(2) KLT 230 (F.B) and that of the Supreme Court in Kunhamma v. Akkali RCR. 203/08 etc. -6- Purushothaman, 2007(3) KLT 99 (SC) the evidence available on record will show that the tenants failed miserably in showing that they satisfied the ingredients of the second proviso which are in the conjunctive. 3. All the submissions of Mr.Chitambaresh were resisted forcefully by Sri. Sajan Varghese and Sri.Vinodkumar, learned counsel for the tenants in the three revisions. Mr. Sajan Varghese reminded us of the contours of our jurisdiction udner section 20 of Act 2 of 1965. According to him, in this jurisdiction, we are not expected to make a reappraisal of the evidence for the purpose of substituting factual conclusions arrived at by the statutory authorities, especially when they are concurrent. According to the learned counsel, in the instant case the conclusion arrived at by the Rent Control Appellate Authority in concurrence with those of the Rent Control Court are reasonable conclusions based on the evidence on record. RCR. 203/08 etc. -7- There is no warrant within the scope of Section 20 to interfere with those conclusions. Mr.Sajan Varghese and Mr.Vinodkumar went on to justify the decision of the Appellate Authority on the basis of evidence on record. Reading over to us the pleadings in the RCP and the case of the landlord as emerging from the notice issued to the tenants and as spoken to by him as PW-1 the learned counsel submitted that the landlord does not have any consistency as to his need and as to how he is going to accomplish his need. The learned counsel further submitted that the need projected which is for coming over from Coimbatore where the family of the landlord is settled down for years for the purpose of conducting business at Palakkad at this advanced stage of the landlord's life is inherently bereft of any necessity. The learned counsel would read over to us the full text of the testimony rendered by PW-1, particularly in cross-examination. According to the learned RCR. 203/08 etc. -8- counsel, when the evidence of PW-1 is appreciated in an objective manner, it can be found that the intention of PW-1 is to evict the tenants under the pretext of need to occupy the buildings for conducting bakery business and then to dispose of the buildings by lease on much higher rent or by sale. The learned counsel for the respondents would oppose the submission of Mr.Chitambaresh that in the event of this Court finding that the need is bona fide the eligibility of the tenants for the protection of the second proviso should be decided by this court itself. According to the learned counsel, the above aspect is to be decided by the Rent Control Court first, so that the aggrieved party will not be deprived of the right of appeal on the finding of the Rent Control Court. If this Court was to decide the question of the tenant's eligibility for protection of the second proviso at this stage, legal prejudice will be occasioned to the tenants. 4. We have very anxiously considered the rival RCR. 203/08 etc. -9- submissions addressed at the Bar. We have scanned the judgment of the Appellate Authority as well as the order of the Rent Control Court. We have appreciated the evidence in the case, particularly the oral evidence of PW-1 and the documentary evidence to which our attention was drawn by the learned counsel on either side. It is true that the contours of the revisional jurisdiction of the High Court under section 20 of Act 2 of 1965 will not ordinarily enable the High Court to make a reappraisal of the evidence for the purpose of substituting factual conclusions arrived at by the final fact finding authority especially when the same is in concurrence with the original authority, the Rent Control Court. But in the instant case, we feel that the appreciation of the evidence adduced by PW-1 and the circumstances of the case as emerging from the documentary evidence available in the case has not been proper. As rightly argued by Mr.Chitambaresh the bona fide need for the purposes of RCR. 203/08 etc. -10- sub-section (3) of Section 11 does not mean an absolute necessity without which the landlord will not be able to pull on. Bona fide need means nothing more than a reasonable requirement not actuated by any oblique motives. The bona fide need under sub-section (3) of Section 11 should involve elements of necessity though the necessity need not amount to a pressing necessity. Our enquiry therefore should be to find out whether the need projected by PW-1 who is no doubt a very senior citizen, involves elements of necessity. We can see that PW-1 belongs to a family of business men. He has been in business till recently. It is the case of the tenants themselves that the revision petitioner closed down his flourishing business under the name and style Variety Home in a prestigious Shopping Centre at Gandhipuram, Coimbatore only just prior to the commencement of the RCP for the purpose of foisting a cause of action for the present proceedings. Though questions have been asked in cross- RCR. 203/08 etc. -11- examination challenging the genuineness of the need projected, we find that not even a single question is asked in the line that due to old age and any age related health problem PW-1 will not be able to conduct business. The suggestions in cross examination were only in the line that as the family is put up at Coimbatore and as the children are well placed, PW1 is not at all likely to take up the ordeal of starting bakery business at this twilight stage of his life. 5. But having scanned the evidence given by PW1, we find that the need which he has projected is the need to do business of his own in his home town. According to us, the courts below are not justified in brushing aside that need as the whimsical desire of an old man. Though not an absolute necessity, the that need projected by PW1 in the RCP and pursued by him in evidence and proved by him through his evidence involves an element of necessity though the same many not be a pressing necessity. Reversing the finding of RCR. 203/08 etc. -12- the Rent Control Court and the Appellate Authority in that regard, we find that the need projected by PW1 is bona fide. In fact, we enquired of the learned counsel for the respondent as to what the respondents' apprehensions were. The learned counsel submitted that the respondents apprehend that after getting eviction, the landlord will dispose of the building by lease or even sale. Sri.Chitambaresh submitted before us that the landlord has no objection in our incorporating appropriate safeguards in the order to prevent such a situation. 6. We are not inclined to accept the submission of Sri.V.Chitambaresh that we should decide the issue of the tenant's eligibility for protection of the second proviso ourselves. As that issue was never addressed before the Rent Control Court or before the Appellate Authority, we are inclined to remand that issue to the Rent Control Court. 7. We notice that the monthly rent which is being paid RCR. 203/08 etc. -13- by the tenants are ridiculously low. We re-fix the rent payable by the revision petitioner in RCR 203/08 at Rs.100/- per mensem with effect from 01/04/11. Similarly we re-fix the rent payable by the revision petitioner in RCR 207/08 at Rs.250/- per mensem. We re-fix the rent payable by the revision petitioner in RCR 225/08 at Rs.100/- per mensem. It is open to either party to apply for regular fixation of fair rent before the Rent Control Court. 8. The result of the above discussion is as follows:- The order of the Rent Control Court and the judgment of the Rent Control Appellate Authority is set aside. It is found that the need projected by the landlord under sub- section (3) of Section 11 is bona fide. The RCP Nos.106/04, 107/04 & 108/04 are remanded to the Rent Control Court (Additional Munsiff's Court, Palakkad) for fresh enquiry and decision as to whether the tenants are entitled for the protection of the second proviso to sub-section (3) of RCR. 203/08 etc. -14- Section 11. If the tenants are desirous of adducing evidence, they should be permitted to do so. If the tenants adduce further evidence the landlord also should be permitted to adduce counter evidence. Rent payable by the tenant is re-fixed as indicated above. The parties will enter appearance before the Rent Control Court on the day the court re-opens after midsummer holidays. The court will pass revised orders within three months thereafter. If the Rent Control Court finds that an order of eviction is liable to be passed against the tenant, the court may restrain the landlord for a period of 3 years from letting out the building on lease and from selling the building. (PIUS C.KURIAKOSE, JUDGE) (N.K. BALAKRISHNAN, JUDGE) ksv/-