IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 RCRev..No.156 of 2009 (B) ------------------------------ RCA.29/2001 of RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT JUDGE-II), KASARAGOD RCP.14/1983 of PRL.MUNSIFF, KASARAGOD .................... REVISION PETITIONERS/SUPPL. APPELLANTS 11 TO 14 ------------------------------------------------------------- 1. LEELAVATHI R.RAO, AGED 56 YEARS, R/A MISSION COMPOUND KASARAGOD, KASBA VILLAGE, POST KASARAGOD. 2. POORNIMA M.RAO, AGED 34 YEARS, -DO- -DO- 3. POORNAPRAKASH M.RAO, AGED 32 YEARS, -DO- -DO- 4. PRASANTH M.RAVO, AGED 29 YEARS, -DO- -DO- BY ADV. SRI.M.CHATHUKUTTY NAMBIAR RESPONDENT(S)/RESPONDENTS/PETITIONERS: ---------------------------------------------------- 1. CORPORATE MANAGER, B.E.M.HIGH SCHOOL, KASARAGOD AT CALICUT DIOCEMAN OFFICER, BANK ROAD, CALICUT. 2. HEAD MASTER, B.E.M.HIGH SCHOOL, KASARAGOD, KASARAGOD DISTRICT. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 17/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------------ R. C. R. No.156 of 2009 ------------------------------------------------ Dated this the 17th day of September, 2009 ORDER Pius C. Kuriakose, J The tenants being the legal heirs of the deceased tenants are the revision petitioners. The respondent/ landlord is an Educational Institution and the Rent Control Petition was instituted invoking grounds of arrears of rent and bona fide own occupation under Section 11(2)(b), 11(3) and 11(7). The only contention raised by the revision petitioners was that they are 'kudikidappukars' entitled to purchase land around the building in question towards their 'kudikidappu' rights. The Rent Control Court, in the first instance on the basis of findings entered by the R. C. R. No.156 of 2009 -2- Land Tribunal in a reference made under Section 125 (3) as well as a separate original application under Section 80(B) found that the revision petitioners are 'kudikidappukars'. The Appellate Authority also confirmed the above finding and dismissed the Rent Control Appeal. This Court, however, under Annexure- A4 judgment held that the revision petitioners are not entitled to raise a contention that they are 'kudikidappukars' since it has been found finally by this Court by judgment in CRP.2085/92 that the revision petitioners are not 'kudikidappukars' or cultivating tenants entitled for fixity under Section 13 of the Land Reforms Act. After vacating the finding of the Rent Control Court and the Appellate Authority that the revision petitioners are 'kudikidappukars' under Annexure-A4 this Court remanded the Rent R. C. R. No.156 of 2009 -3- Control Petition to the Rent Control Court to take a fresh decision in the RCP on the merits of the eviction grounds raised therein since neither the Rent Control Court nor the Appellate Authority had considered those grounds in the light of their finding that the revision petitioners are 'kudikidappukars'. The operative portion of Annexure-A4 judgment reads as follows:- “We therefore allow this Civil Revision Petition and setting aside the dismissal of RCP.14 of 1983 remand that application to the Rent Control Court for a fresh trial and disposal in accordance with law on the claims made under sub section (2), (3) and (7) of Section, 11 of the Act and on the basis of the finding that the respondents are not 'kudikidappukars' and are not entitled to the protection of the Kerala Land Reforms Act. The parties will appear in the Rent Control Court on 21/08/2000.” 2. After remand, the Rent Control Petition was special listed for trial on 04/07/01. On that day the R. C. R. No.156 of 2009 -4- petitioners as well as respondents in the RCP were present and it was submitted before the court that neither of them proposed to adduce oral evidence and accordingly, the case was adjourned for hearing peremptorily to 12/07/01. Though the posting on 12/07/01 was a peremptory one for final hearing of the matter, adjournments were sought for and readily granted and finally after hearing both sides, the Rent Control Petition was allowed by the Rent Control Court on 25/09/01 on the grounds of arrears of rent and the ground under sub Section 7 of Section 11. 3. Impugning the order of the Rent Control Court, the revision petitioners preferred RCA before the Rent Control Appellate Authority. That authority after re-appraising the evidence would concur with all the conclusions of the Rent Control Court and dismiss R. C. R. No.156 of 2009 -5- the appeal. This revision under Section 20 is filed raising various grounds assailing the order of the Rent Control Court and the judgment of the Appellate Authority. 4. On hearing Sri.M.C.Nambiar, the learned counsel for the revision petitioners initially for admission, we called for the entire lower court records and the lower court records are presently available. We have heard submissions of Sri.M.C.Nambiar and we have perused the lower court records particularly, the evidence adduced by the parties, i.e. the oral testimonies of PW1 and PW2 and that of RW1. Sri.Nambiar would argue that the revision petitioners are 'kudikidappukars' and that the finding that the revision petitioner is a building tenant is the result of misreading of the evidence which was available in the R. C. R. No.156 of 2009 -6- case. According to the learned counsel, on a proper reading of the evidence, it will be seen that the jural status of the revision petitioners is as legal heirs of the original 'kudikidappukaran' and hence, as 'kudikidappukars'. Sri.Nambiar would further argue that bona fides being a state of mind, can be best manifested only by the person who conceives such a state of mind and in this particular case, the non- examination of any of the members of the management to which the building belongs, is fatal. The evidence of the Head Master cannot be a substitute for evidence of one of the Managers who alone can be competent to speak as to the bona fides of the need. 5. We have very anxiously considered the submissions of Mr.Nambiar. We have gauged the order R. C. R. No.156 of 2009 -7- of the Rent Control Court and the judgment of the Appellate Authority by the parameters which are applicable to the exercise of revisional jurisdiction under Section 20. The persuasiveness of Sri.Nambiar notwithstanding, we are unable to entertain his submission that the revision petitioners are 'kudikidappukars'. That question, according to us, has been finally decided against the revision petitioners by Annexure-A4 judgment and the order in the CRP referred in Annexure-A4. We have scanned the statement of objections filed by the revision petitioners to the Rent Control Petition. We find that the one contention which is raised in defence to the RCP is that the revision petitioners are 'kudikidappukars'. No other contention is raised challenging the merits of the grounds raised under R. C. R. No.156 of 2009 -8- Section 11(7) or for that matter under Section 11(2) (b). In fact, the defence to the ground under Section 11(2)(b) was that there is no liability to pay rent since the revision petitioners are 'kudikidappukars'. In other words, it is admitted by the revision petitioners that the arrears of rent alleged has not been discharged. True, even in the absence of objections by the tenant, it may be necessary, for the Rent Control Court to consider the question of bona fides of the need projected. But in this particular case, the need is projected not under Section 11(3), but under Section 11(7). This Court has held that the standards for establishing the bona fides of a need under Section 11 (7) are very liberal in contrast to the standards required in the case of applications under Section 11 (3) and 11(8). We notice that the finding that the R. C. R. No.156 of 2009 -9- building is required by the petitioner in the RCP for accommodating the present Peon of the School has been entered on the basis of the evidence adduced by PW1/the Head Master and PW2/the former Head Master. We are not impressed by the submissions of Sri.Nambiar that PW1 is not competent to adduce responsible evidence regarding the genuineness of the need. According to us, PW1 is perhaps, more competent than the Manager of the school to prove the genuineness of the need to accommodate the Peon who is working under him. At any rate, we do not find any warrant at all for invocation of the revisional jurisdiction of this Court under Section 20 for correcting the order of the Rent Control Court and the judgment of the Appellate Authority. R. C. R. No.156 of 2009 -10- 6. As his last request Sri.Nambiar sought for a reasonably long period to give surrender of the building. The litigation is more than twenty five years old. Even then, we feel that time can be granted to the revision petitioners for peacefully surrendering the petition schedule building till 31/03/2010 subject to the following conditions:- 1) The revision petitioners shall pay the entire arrears of rent found by the Rent Control Court and the Appellate Authority to be due in respect of the building in question to the petitioner in the RCP within six weeks from today. 2) The first revision petitioner representing the other revision petitioners shall file an affidavit before the execution court or the Rent Control Court, as the case may be, undertaking to give peaceful surrender R. C. R. No.156 of 2009 -11- of the building on or before 31/03/2010 and that occupational charges at the current rent rate will also be paid till such time as actual surrender is made. Affidavit as directed above shall be filed within one month from today and the revision petitioners will be entitled for the benefit of time granted by this judgment only if the affidavit as directed above is filed on time. 7. The RCR is dismissed subject to the above conditions. PIUS C. KURIAKOSE JUDGE K. SURENDRA MOHAN JUDGE kns/-