IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 RCRev..No. 132 of 2008() ------------------------ RCA.41/2006 of DISTRICT COURT, KOTTAYAM RCOP.11/2005 of MUNSIFF COURT, VAIKOM .................... RESPONDENT/CR.PETITIONER -------------------------------------------- ANNAKUTTY, W/O.KURUVILA, KUZHIMALIYIL HOUSE, BRAHMAMANGASLAM KARA, CHEMBU VILLAGE, VAIKOM TALUK KOTTAYAM BY ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE RESPONDENT/APPELLANT(S): --------------- S.JAMAL., S/O.SAITHU MOHAMMED, PUTHENVEE TTIL, THALAYOLAPARAMBU KARA CHEMBU VILAGE, VAIKOM TALUK, KOTTAYAM ADV. SRI.T.M.ABDUL LATHEEF FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No. 132 OF 2008 ------------------------ Dated this the 11th day of March, 2009 ORDER Pius C.Kuriakose, J. The tenant is the revision petitioner. The need projected by the landlord was that he wants to conduct business in tobacco in the petition schedule room. The bona fides of the need and the claim were resisted by the revision petitioner tenant mainly on the reason that in 2002 and in 2005 the landlord has sold off two other buildings belonging to him. The contention was that if the need was bona fide, the landlord could have accomplished the need by occupying the rooms, which were sold off by him, in the years 2002 and in 2005. The evidence before the rent control court consisted mainly of the testimony of the landlord as PW1 and that of the tenant as CPW1. Importantly, the tenant revision petitioner, who was doing jewellery business and banking business in the petition schedule building, did not pursue his claim for protection of the second proviso to Section R.C.R..No.132/2008 2 11(3) of the Act. The landlord would depose before the rent control court that, though he is old, he has a genuine need to carry on business in tobacco, which he used to carry on previously in another building, since there is nobody else to support his family which consists of himself, his wife and their only son, who is ailing due to several diseases. He deposed that the buildings which had been sold away in 2002 and 2005 were not vacant buildings at the time of sale, but were buildings occupied by the tenants. As regards the building which was sold away in 2005, a few months before the demand notice Ext.A2 was ordered, he would clearly state that the document will reveal that the building is under the possession of the tenant Kerala Ayurvedic Pharmacy. The rent control court, on evaluating the evidence, would hold that there was no convincing evidence adduced on the side of the landlord to the effect that the building sold by the landlord to Sri. Saffarulla in 2005 was not a vacant building. According to that court, the circumstance that the landlord sold that building at a time when the landlord was accomplishing the need of doing business in the petition schedule building is a circumstance which militates against the R.C.R..No.132/2008 3 genuineness of the need projected by him in the rent control petition and accordingly would dismiss the rent control petition. The rent control appellate authority, on reappreciating the entire evidence thoroughly, would reverse the findings of the rent control court. That authority found that the landlord's version that, the building which he had sold in the year 2005 to Sri. Saffarulla at a time when he was admittedly harbouring the need for own occupation was not a vacant building, but was under the possession of the tenant Kerala Ayurveda Pharmacy, was credible. Accordingly, the appellate authority would order eviction under Section 11(3). 2. We have heard the submissions of Sri.M.G.Karthikeyan, learned counsel for the revision petitioner and those of Sri.T.M.Abdul Latiff, learned counsel who has lodged a caveat on behalf of the landlord. 3. Sri.M.G.Karthikeyan would assail the findings of the rent control appellate authority and submit that the rent control appellate authority was not at all justified in reversing the R.C.R..No.132/2008 4 findings of the rent control court. The learned counsel submitted that the rent control court had the advantage of recording the testimony of PW1 and watching his demeanor in the witness box. When the rent control court was not inspired by the evidence of PW1, it was not proper on the part of the appellate authority to have interfered with the order of that court which is founded mainly on the appreciation of the testimony of PW1. The learned counsel submitted that, if as a matter of fact, the building sold to Sri. Saffarulla was under the occupation of the tenant, the same will be borne out by the documents at the disposal of the landlord and non production of such documentary evidence by the landlord is a circumstance which will justify drawal of adverse inference against the landlord. 4. Sri.T.M. Abdul Latiff, learned counsel for the respondent would read over to us the entire testimony of PW1. He submitted that the version of the landlord PW1 that the building which had been sold in 2002 and the other building which was sold in 2005 were under the occupation of tenants was not pursued in cross examination by the landlord. The learned counsel submitted that it had been specifically stated by the landlord that the R.C.R..No.132/2008 5 building sold to Sri. Saffarulla was under the possession of the tenant Kerala Ayurvedic Pharmacy and that the same is revealed by the sale deed in favour of Sri. Saffarulla. If the revision petitioner wanted to challenge this statement, he could have challenged the same by cross examination or at any rate by producing the document of sale in favour of Sri. Saffarulla. 5. We have considered the rival submissions. Under the statutory scheme, the rent control appellate authority is the final court on facts. We notice that in revision under Section 20 of the Act, we are not expected to substitute our findings for the findings entered by the rent control appellate authority by re appreciating the evidence. We are expected only to examine the legality, propriety and regularity of the order of the rent control appellate authority. It is true that the rent control appellate authority reversed the findings of the rent control court regarding bona fides. But, then the only circumstance on which the rent control court found that the claim is not bona fide is that the landlord had sold one building belonging to him to one Sri. Saffarulla in 2005 a few months prior to the institution of the rent control petition at a time when the landlord was admittedly R.C.R..No.132/2008 6 harbouring the need to carry on the business. It is obvious that even prior to the issuance of the demand notice Ext.A2 the landlord had been requesting the revision petitioner tenant to vacate the petition schedule building on the reason that he wants to carry on business(which by all probabilities is to carry on business in tobacco) in the petition schedule building. In other words, the evidence is to the effect that the landlord's need all along was to do business in tobacco in the petition schedule building itself. It has come out in evidence that unlike the petition schedule building, the building which was sold to Sri. Saffarulla did not have the direct frontage of the State Highway and had the frontage of only the market road. It appears to us that the petition schedule building had the direct frontage of the State Highway and it was having the frontage of the market road also. Even then it would have been of some consequence if the building which was sold to Sri. Saffarulla was a vacant building. But the landlord's version as PW1 is that the building sold to Sri. Saffarulla was under the occupation of the tenant Kerala Ayurvedic Pharmacy and that it is so stated in the document of conveyance in favour of Sri. Saffarulla. We find R.C.R..No.132/2008 7 that the above version of the landlord stated in cross examination is not challenged further in cross examination by the tenant. Moreover, nothing prevented the tenant from producing the certified copy of the sale document and prove before the appellate authority or atleast before this court that the building was a vacant building and that Sri. Saffarulla got vacant possession. 6. The authorities under the Rent Control Act are expected to take decision in accordance with the principles of justice, equity and consciousness as statutorily recognised under Sub Rule 8 of Rule 11 of the Rent Control Rules. It has come out in evidence that the landlord at the time of the commencement of the rent control petition does not have any other building in which he can carry on business so that income can be derived for supporting his family which consists apart from himself, of his wife and their only son who is ailing from various diseases. We also notice the further circumstance that the revision petitioner tenant, who had been doing business like jewellery and banking did not even seriously claim protection of the second proviso of R.C.R..No.132/2008 8 Section 11(3) of the Act. At any rate, we do not find any illegality, irregularity or impropriety in the order of the rent control appellate authority warranting correction under Section 20 of the Act. 7. The rent control revision will stand dismissed. However, having regard to the fervent appeal of Sri. Karthikeyan, learned counsel for the revision petitioner for grant of time, we are inclined to grant time till 30/9/2009 subject to the following conditions; The revision petitioner files an affidavit before the rent control court within three weeks from today. Through the affidavit, he will undertake that he will peacefully handover possession of the petition schedule building to the respondents on or before 30/9/2009. Through the affidavit, he will also undertake that he will discharge arrears of rent if any and will continue to pay the rent which falls due R.C.R..No.132/2008 9 subsequently till the date of surrender without fail. PIUS.C.KURIAKOSE,JUDGE C.K.ABDUL REHIM, JUDGE dpk