IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 CRP.No. 882 of 1999(F) ---------------------- RCA.131/1995 OF RENT CONTROL APPELLATE, THALASSERY RCP.2/1994 OF RENT CONTROL COURT, PAYYANNUR .................... REVN. PETITIONER(S)/RESPONDENTS 1 TO 3/PETITIONERS: ----------------------------------------------------------------- 1. KALLUKETTIYA PEEDIKAYIL KURUKAN PADINHARE PURAYIL UMMERKUNHI, 58 YEARS, RETIRED POLICE SUPDT. SUHARA MANZIL, PARAKKANDI KANNUR TALUK, KANNUR FATHER'S NAME NOT KNOWN. 2. BAPPEERAMPATH VEET ILIBRAYIMKUTTY 'S SON RAFEEQ POOTHAPPARA, AZHIKODE, KANNUR – 9, OCCUPATION NOT KNOWN. 3. HAFSATH P.K. D/O IBRAHIMKUTTY, KAIYAN HOUSE, POOTHAPPARA, AZHIKODE, KANNUR – 9,OCCUPATION NOT KNOWN. BY ADV. SRI.A.MOHAMED MUSTAQUE RESPONDENT(S)/APPELLANTS/RESPONDENTS 4 TO 9/RESPONDENTS: ----------------------------------------------------------------------------- 1. C.V.SAROJINI W/O N.V. CHANDUKUTTY NAIR, BRASS COPPER MERCHANT, HIGH SCHOOL ROAD, NILESWAR, AGED 40 YEARS. 2. C.V.SUSHEELA W/O KUNHIRAMAN NAIR PANKAJA STORES SM STREET, KOZHIKODE, AGED 38 YEARS. 3. C.V.DAMODARAN, OWNER OF FERICON STEELS KELOTH, POST PAYYANNUR S/O KUNJIKANNAN NAIR, AGED 45 YEARS. 4. C.V.SANKARAN NAIR, MERCHANT, ALUMINIUM METALS, MAIN ROAD, PAYYANNUR S/O KUNHIKANNAN NAIR, AGED 42 YEARS. 5. C.V.NARAYANAN NAIR, MANHAKKAD, CHERUPUZHA, PAYYANNUR S/O KUNHIKANNAN NAIR, ATED 40 YEARS BUSINESS. 6. C.V.PADMANABHAN NAIR, MANHAKKAD S/O KUNHIKANNAN NAIR, BUSINESS, CHERUPUZHA, PAYYANNUR, AGED 39 YEARS (DIED) 7. C.V.RAGHAVAN NAIR, MANHAKKAD S/O KUNHIKANNAN NAIR, CHERUPUZHA, PAYYAUR, BUSINESS. 8. C.V.KUNHI AMMA, 2ND W/O KUNHIKANNAN NAIR, MADHAVI KRISHNAN NEAR CONVENT, P.O. PAYYANNUR, 75 YEARS, NO OCCUPATION. 9. C.V. BHANUMATHI W/O V.RAMACHANDRAN, ADVOCATE, AGED 35 YEARS, AZCHAVATTAM, KOZHIKODE DIST. 10. C.V. PRAMEELA, MADHAVI KRISHNAN, AGED 33 YEARS, NO OCCUPATON, NEAR CONVENT, POST PAYYANNUR. 11. C.V. THANKAMANI W/O KUNHIRAMAN, BRASS METALA WORKS, AGED 30 YEARS, OTTAPALAM, PALAKKAD DIST. SUPPLEMENTAL RESPONDENTS 12-14 12. GIRIJA, CHERAMPARA HOUSE, W/O LATE PADMANABHAN, THACHAMPARA P.O. PALAKKAD DISTRICT PIN – 618 593 13. SANGEETHA D/O GIRIJA DO. DO. 14. ARUN S/O GIRIJA DO. DO. SUPPLEMENTAL RESPONDENTS 1 TO 14 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED 6TH RESPONDENT VIDE ORDER DT. 5-10-09 IN IA. 1322/09 ADV. SMT.S.KARTHIKA FOR R4,5, 6 &7 SRI.M.S.UNNIKRISHNAN FOR R4,5, 6 & 7 SRI.M.R.ANISON FOR R4,5, 6 & 7 SMT.K.P.GEETHA MANI FOR R4,5, 6 & 7 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ---------------------------------------------------------- CRP. No. 882 of 1999 ------------------------------------------- Dated this the 1st day of December, 2009 O R D E R Pius C. Kuriakose, J. The landlords are the revision petitioners. They are aggrieved by the judgment of the rent control appellate authority, dismissing the RCP filed by them mainly on the ground of bona fide own occupation, in reversal of the decision of the rent control court finding that the need projected in the RCP was a bona fide one and that the tenant is not entitled for the protection of the second proviso to sub-section (3) of Section 11. The need projected in the RCP in the context of the ground under sub-section (3) of Section 11 was that the petition schedule building, which is a fairly large size building with a hall and two smaller rooms, is needed bona fide CRP. 882/99 - 2 - for the occupation of the first revision petitioner, who was the first petitioner in the RCP, so that he can conduct business in stationary. The tenant disputed the bonafides of the need projected stating several reasons. It was stated that the first revision petitioner retired from the police department as Superintendent of Police and that it is very unlikely that such a person will conduct a business in the nature of the business proposed. It was further contended that the first revision petitioner, after retirement, is residing at Azheekode and that it is very unlikely that such person will travel every day to the petition schedule building situated at Payyannur, a town situated 40 Kms away. Thirdly, it was contended that the first revision petitioner does not have any experience in conducting stationary CRP. 882/99 - 3 - business. Apart from disputing the bonafides of the need projected on the above and other reasons, the respondent tenants also contended that they are entitled to the protection of the second proviso to sub-section (3) of Section 11, since they were depending mainly on the income derived from the business for their livelihood and also since other suitable buildings are available in the locality for shifting their business to. It was also contended that the need is not bona fide because the landlord had some time prior to the institution of the RCP, come to have possession of two buildings, which are presently occupied by one Kunhirama Poduval and one Hamsa Kunhi. 2. At trial by the rent control court, evidence on the side of the landlord consisted of Exts.A1 to A12 and the CRP. 882/99 - 4 - oral testimony of PW1, the first petitioner in the RCP, the retired Superintendent of Police. On the side of the tenants, the same consisted of Exts.B1 to B6 and the oral testimony of RW1. The rent control court, on evaluating the evidence, came to the conclusion that the need projected by the landlord was bona fide. According to that court, PW1 belong to a business family and that previous experience as such is not necessary. As for the two buildings found to have been got vacated by the landlord prior to the institution of the RCP, it was found that in the case of the building occupied by Hamsa Kunhi, the landlord never came to have vacant possession but the landlord only became obliged to execute a fresh lease deed in favour of Hamsa Kunhi, whose father was already in occupation. As for the CRP. 882/99 - 5 - building owned by Kunhirama Poduval, it was found that the said building is a small one, which will not be sufficient for the landlord's requirements, which is for conducting a stationary business in a large scale. It was also found that the tenant was unsuccessful in proving that either of the ingredients of the second proviso are satisfied and accordingly it was found that the tenant is not entitled for the protection of the second proviso to sub-section (3) of Section 11. Resultantly, order of eviction was passed under Section 11(3). The rent control appellate authority, on considering an appeal preferred by the tenants, however, would reverse the finding of the rent control court that the need projected in the RCP was bona fide. According to that court, having regard to the social, financial and service CRP. 882/99 - 6 - background of PW1, it was very unlikely that a person like PW1 will go in for a small time business of stationary shop. According to that authority, the petitioners were unsuccessful in proving that PW2 has experience in business by attending his father's shop during his childhood days. Thus, it was held that PW1 does not have any previous experience in conducting stationary business. The appellate authority also noticed that the distance between Payyannur, where the petition schedule building is situated, and Azheekode, where PW1 is presently residing, is considerable and according to that authority, it was not at all likely that PW1 will travel every day for conducting business in the petition schedule building at Payyannur. The appellate authority, it would appear, has taken a view that it is not CRP. 882/99 - 7 - necessary for PW1 to take up all these ordeals, since he is otherwise well placed in life. The appellate authority, without specific dissenting from the findings of the rent control court in the context of the two buildings referred to as Poduval's building and Hamsa Kunhi's building, would take the view that if the need was bona fide, PW1 could have occupied either of those buildings. On these reasons, the appellate authority held that the need projected in the RCP is not bona fide. That authority, however, would concur with the rent control court in its findings in the context of the second proviso to sub- section (3) of Section 11. However, in view of the finding that the need is not bona fide, the order of eviction was set aside and the RCP was dismissed. 3. In this revision filed under Section 20, the CRP. 882/99 - 8 - landlord has placed various grounds assailing the judgment of the appellate authority. The disposal of this revision petition, which was filed way back in 1999, got delayed due to several reasons and in the meanwhile, the respondents filed three interlocutory applications for receiving documents referred to as Annexures 1 to 3. Through Annexures 1 to 3, the respondents wanted to bring to the notice of this Court the alleged subsequent event of building having door Nos.582/21, 590/21 and 591/21 having fallen vacant and becoming available to the landlord. These Annexures are to the effect that these three rooms have fallen vacant. As for rooms having door Nos.590/21 and 591/21, the answer of the landlord is that those rooms are in the first floor and if the respondent is desirous, the landlord will not have CRP. 882/99 - 9 - any objection in renting out either of those rooms to the respondent, provided the respondent pays a reasonable rent. The answer regarding room No.580/21 was that the said room continues to be possessed by a tenant. Today, when the RCR came up before us, it was asserted by the counsel for the respondent that room No.582/21 is not occupied by any tenant and that it is under the vacant possession of the landlords. Sri.Mohammed Mustaque, learned counsel for the revision petitioner, wanted the case to be taken up after lunch so that he has specific instructions from his party regarding the details of the tenant who occupies building having door No.582/21. After lunch, he submitted before us that it is true that the building having door No.580/21 is remaining closed down for several months. CRP. 882/99 - 10 - But, the juristical possession of that room is continuously with a tenant by name Rafeek S/o.Aboobakar Haji. The son-in-law of PW2 has already purchased fractional rights over that building from revision petitioners 2 and 3 by means of registered instruments. He is now negotiating with Rafeek so that Rafeek will handover possession of that building to him so as to enable him to carry on his own business in that room. 4. It was very extensive submissions, which were addressed before us by the learned counsel for the revision petitioner and the learned counsel for the respondent. The submissions were on the basis of various grounds raised. Smt.S.Karthika, learned counsel for the respondent, would support the impugned CRP. 882/99 - 11 - judgment not only on the reasons stated by the appellate authority but also on the reason that at least building having door No.582/21 has practically become available with PW2, the first revision petitioner. 5. We have very anxiously considered the submissions addressed at the Bar. Since the findings are divergent, apart from scanning the order of the rent control court and the judgment of the appellate authority, we have made a re-appraisal of the evidence. The de facto claimant PW1 retired as a Superintendent of Police. His testimony before the rent control court was to the effect that he does not want to idle after his retirement and that his intention is to conduct stationary business in the petition schedule building. This evidence inspired the mind of the rent control court which had CRP. 882/99 - 12 - the advantage of seeing him and recording his deposition. The appellate authority, it would appear, has over emphasised the word 'intention' used by PW2 in the RCP in a part of his testimony of PW1. According to that authority, the words 'intention' and 'need' are not synonymous. But, we notice from the evidence that elsewhere in his deposition he has also stated that he has a need to carry on business. In our opinion, the appellate authority should not have highlighted the word 'intention' used by PW1 in his testimony to this extent. According to the appellate authority, a person of the status of PW1 will not start a small time business of stationary shop. We cannot agree. It is trite that the landlord is the best judge of requirements. PW1, who all along had a very aggressive life during his service days CRP. 882/99 - 13 - perhaps thought that during his retiral life, he could have a quiet life doing the business in a building in which he is having co-ownership rights situated in an important area of one of the ancient towns of erstwhile Malabar. 6. PW1's father was a business man and it is in evidence that many of his relatives are in business. It is only natural that PW1 thought in terms of doing business in his retired life. We do not know why the learned Appellate Authority thinks that doing business in stationery does not befit the social status of a retired Superintendent of Police. The building in question is a fairly large size building and it will be possible for PW1 to conduct stationery business in a fairly large scale befitting his social and financial status. An aspect which seems to have weighed with the Appellate Authority is CRP. 882/99 - 14 - that the petition schedule building is situated at Payyannur, some 40 kilometres away from Azheekode, the place where PW1 is presently residing. According to the Appellate Authority, it is not likely that PW1 will travel 40 kilometres up and down every day for doing business at Payyanur. We cannot agree. It appears to us that the Appellate Authority's approach in the matter is unrealistic. PW1 is a very healthy person who drives his own car. Azheekode is a village unlike Payyannur which is a major Municipality in the District. Most importantly, Payyannur is the only place where PW1 is having his own petition schedule building, suitable for conduct of the proposed business. When PW1 has given inspiring evidence that he will conduct business at Payyannur while having his residence at Azheekode and CRP. 882/99 - 15 - when that evidence is accepted by the Rent Control Court it was improper on the part of the Appellate Authority to have misappreciated that evidence in this fashion. 7. The only question to be considered is whether the rent control petition is liable to fail by virtue of first proviso to sub-section (3) of Section 11 or because of the circumstance that the landlord did not occupy vacant building which came to his possession during the pendency of the proceedings for the purpose projected in the RCP. We are in agreement with the Rent Control Court that the lease in favour of Hamsa Kunhi was only in renewal of an existing lease in favour of Hamsa Kunhi's father. The landlord had never come to have vacant possession of that building. As for the building CRP. 882/99 - 16 - possessed by Kunhirama Poduval, it is on the basis of evidence that the Rent Control Court found that the said building unlike the petition schedule building is very small one in which the large scale stationery business proposed to be conducted by the landlord cannot be conducted. Before us it was tried to be shown that door Nos. 582/21, 590/21 and 591/21 have fallen vacant. As already noticed the answer of the landlord as regards building numbers 590/21 and 591/21 that those rooms are in the first floor and that the landlord is ready and able to let out either of those rooms to the respondent provided the respondent pays a reasonable rent. The respondent is not interested. If the respondent is not interested in those rooms we cannot insist that the landlord should take those rooms in preference to the CRP. 882/99 - 17 - petition schedule building which is in the ground floor. Towards the end of her submissions Smt.Karthika, learned counsel for the respondent would give thrust to the argument that room No. 582/21 has come to the vacant possession of the landlord. We are of the view that the stand taken by Mr.Muhammed Mustaque that rooms continues to be in the possession of the tenant Rafeeque though he is not presently using that building for doing business, is acceptable. His son in law PW2 has already purchased fractional right over that building from revision petitioners 2 and 3 by means of registered instruments and is presently negotiating with Mr.Rafeeque so that Refeeque can put him into possession so as to enable him to carry on his business. Whatever that be, the above building is presently under CRP. 882/99 - 18 - the juristical possession of Rafeeque and not of PW1. 8. As for the question whether the tenant is entitled to the protection of the second proviso to sub-section (3) of Section 11 it has been concurrently found that the tenant was unsuccessful in showing that he satisfies either of the ingredients of that proviso there is no warrant for interference with that finding. In fact serious arguments were not addressed before us on behalf of the respondent regarding the tenant's eligibility for protection of the second proviso. 9. As a last request Smt.Karthika sought for one year's time to surrender the premises. We are not inclined to grant so much of time in this revision petition which is more than 10 years old. 10. In the result, the RCR is allowed. The execution CRP. 882/99 - 19 - court is directed not to order vacation of the petition schedule building till 31-05-2010 provided the following conditions: (i) The revision respondents will file an affidavit before the execution court within three weeks from today, undertaking to give peaceful surrender of the petition schedule building to the respondent on or before 31-05-2010. Through the very same affidavit, it should be undertaken that arrears of rent, if any, will be paid within one month and the occupational charges at the same rate will also be paid as and when the same falls due. It is made clear that the revision respondents will be entitled for the benefit of time only if the affidavit is filed on time. The landlords are reminded about the consequences provided under sub-section 12 of Section CRP. 882/99 - 20 - 11, if the building is not occupied for the projected purpose. PIUS C. KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE aks/ksv CRP. 882/99 - 21 - PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. CRP. No. 882 of 1999 O R D E R 1st December, 2009