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 7TH JUNE 2011 / 17TH JYAISHTA 1933 RCRev..No. 160 of 2007 (E) ------------------------------- RCA.14/2003 of I ADDL. DISTRICT COURT (RENT CONTROL APPELLATE AUTHORITY), PALAKKAD RCP.14/2002 of MUNSIFF COURT, CHITTUR .................... PETITIONER/APPELLANT/RESPONDENT/RESPONDENT ----------------------------------------------------------- KRISHNAN, SON OF KANDAMUTHAN, RESIDING AT MELEVEEDU KALAM, KOZHIPARA, VADAKARAPATHY VILLAGE, CHITTUR TALUK. BY ADV. SRI.T.C.MOHANDAS SRI.T.M.SUNIL SMT.S.CHITHRA RESPONDENT(S): RESPONDENT IN R.C.A. 14 OF 2002 AND APPELLANT IN RCA 18/03 - RESPONDENT ---------------------------------------------------------------------------------- THIRUMATHI AMMAL, W/O.ARUMUGHAN, RESIDING AT SANTHI NILAYAM, KACHIMEDU, CHITTUR VILLAGE, CHITTUR TALUK. ADV. SRI.SAJAN VARGHEESE K. FOR R1 SRI.LIJU. M.P FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 07/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. No.160 of 2007 ------------------------------------------------ Dated this the 7th day of June, 2011 ORDER Pius C. Kuriakose, J The tenant is the revision petitioner and he challenges in this revision the judgment of the Rent Control Appellate Authority ordering eviction under Section 11(3) reversing the order of the Rent Control Court declining eviction under the above ground. The revision petitioner also challenges the order of eviction passed by the Rent Control Court under Section 11(2)(b) confirming the order passed by the Rent Control Court with modification in the rate of rent. The case of the landlady was that she had let out the building to the tenant on 01/09/84 on a monthly rent of ` 650/- and that after paying the rent for the period up to 30/06/90 the tenant defaulted payment and did not pay the rent despite several requests in that regard. In the meanwhile, the tenant entered into an agreement with the landlady's husband for R. C. R. No.160 of 2007 -2- purchase of his building located in Kozhinjampara Bazaar for a total consideration of ` 3 lakhs and an amount of ` 1 lakh was paid in instalments. As the tenant failed to pay the balance consideration to the husband of the landlady despite several requests the relationship between the parties became strained and the contract for sale was repudiated. The need projected under Section 11(3) was that the landlady's daughter Vasanthi who has passed B.Sc was unemployed. Vasanthi proposed to conduct a medical shop in the petition schedule building and the above need to accommodate Vasanthi a dependent of the landlady for the conduct of a medical shop was a bona fide one. It was averred in the RCP that another room on the southern side of the petition schedule room was surrendered by one Vasudevan, a tenant four years back and Sri.Vasanthi proposed to conduct a blood testing unit and an x-ray unit in the above room. The ground of cessation of occupation under Section 11(4)(v) was also invoked. But as the eviction R. C. R. No.160 of 2007 -3- sought under that ground was concurrently declined and has become final we do not propose to refer to the pleadings in the context of the ground under section 11(4)(v). The tenant through the statement of objections disputed the existence of the grounds. It was specifically contended that the agreed rent was ` 225/- per mensem and that rent at the above rate was paid up to September, 2001. The bona fides of the need was disputed. It was also contended that the landlady was having several other rooms which could be utilized if daughter Vasanthi was to be accommodated for conducting medical shop business. The Rent Control Court conducted enquiry and the evidence on the side of the landlady consisted of Pws.1 to 3 and Exts.A1 to A11. On the side of the tenant the same consisted of the evidence of RW1 and Exts.P1 to P15. On appreciation of the available materials the Rent Control Court found that the monthly rent was neither ` 225/- as claimed by the tenant nor ` 650/- as claimed by the landlady. It was found that the monthly rent R. C. R. No.160 of 2007 -4- was ` 250/- and eviction order was granted under section 11 (2)(b) finding that the rent was in arrears in respect of a period different from the period claimed by the landlady. However, it was found that the need was not bona fide and that eviction ground under section 11(4)(v) was not established. Thus order of eviction was passed by the Rent Control Court only on the ground of arrears of rent. The appeals were preferred by the landlady and the tenant and the learned Appellate Authority under the impugned judgment has decided both the appeals. The following were the points formulated by the learned Appellate Authority. “1) Whether the tenant has committed default of rent, at the rate of ` 650/- from 01/07/90, as alleged by the landlady ? 2) If so, whether the landlady is entitled for an eviction under section 11(2)(b) ? 3) Whether the petition schedule property is bona fide required for the own occupation of Vasanthi, the daughter of landlady, dependant on her ? 4) Whether the tenant is entitled for the benefit of the 2nd proviso under section 11(3) of R. C. R. No.160 of 2007 -5- the Act ? 5) Whether the landlady is entitled for an order of eviction under section 11(3) ? 6) Whether the tenant has kept the petition schedule building closed for a period of more than 6 months, without any reasonable cause ? 7) Whether the tenant is liable for eviction under section 11(4)(v) ? 8) Reliefs and costs ?” 2. On making a re-appraisal of the entire evidence and pleadings the learned Appellate Authority has by the impugned judgment dismissed the tenant's appeal against the order of eviction under Section 11(2)(b) with modified finding that the contract rent was ` 650/- as alleged by the landlord and that the same was in arrears from 01/07/90 till 03/04/02. The landlord's appeal was allowed in part granting eviction order under sub section 3 of section 11. The order of the Rent Control Court declining eviction under section 11(4) (v) was confirmed. 3. We have heard the submissions of Sri.T.C.Mohandas, R. C. R. No.160 of 2007 -6- the learned counsel for the revision petitioner and those of Sri.Sajan Varghese the learned counsel for the landlord. As the findings entered by the Rent Control Court and the Rent Control Appellate Authority are divergent, we have made a thorough scanning of the pleadings raised by the parties as well as a thorough re-appraisal of the entire evidence on record. Extensive submissions were addressed by Sri.T.C.Mohandas based on the grounds raised in the RCR memorandum. According to Sri.Mohandas the judgment of the learned Rent Control Appellate Authority to the extent the same finds that the contract rent of ` 650/- per mensem and the further extent it finds that the tenant is liable to evict under Section 11(3) are illegal irregular and improper. These findings of the learned Appellate Authority is the result of a totally erroneous appreciation of the pleadings and the evidence. The learned counsel would submit drawing our attention to Ext.A1 lease deed that it is crystal clear that the figure of ` 250/- was corrected by the landlord R. C. R. No.160 of 2007 -7- as ` 650/-. 4. Sri.Mohandas submitted that there was no warrant at all for the Rent Control Appellate Authority to have interfered with the order of the Rent Control Court declining eviction under sub section 3 of Section 11. If there was an element of bona fides in the need projected by the landlady the landlady could have accommodated daughter Vasanthi in the room which was vacated by Sri.Vasudevan. Even that room is kept vacant. This is clearly indicative of absence of bona fide. Sri.Mohandas also submitted that the finding regarding the tenant's eligibility for protection of the second proviso entered by the Appellate Authority is also erroneous. Per contra Sri.Sajan Varghese, the learned counsel for the landlady would support the judgment of the learned Appellate Authority in all respects. According to Sri.Sajan in the present jurisdiction under section 20, the High Court will not be justified in venturing upon a re-appraisal of the evidence for the purpose of substituting findings of fact R. C. R. No.160 of 2007 -8- entered by the learned Rent Control Appellate Authority. The learned counsel pointed that under the scheme of the Act it is the Appellate Authority which is the final fact finding authority. This Court may not interfere with the findings of facts entered by the Appellate Authority, so submitted Sri.Sajan Varghese. 5. Having considered the submissions addressed at the Bar and having re-appraised the pleadings and the evidence, we are of the view that the judgment of the Rent Control Appellate Authority to the extent the same finds that the contract rent in respect of the building is ` 650/- per mensem warrants interference. According to us the finding of the Rent Control Court that the contract rent is ` 250/- is a correct finding founded on documentary evidence available on record. That the landlady tried to play fraud on the tenant and even on the court is clear from the corrections sought to be made to the figure ` 250/- which was mentioned in the document as the monthly rent. According to us, there is no R. C. R. No.160 of 2007 -9- warrant at all for the Appellate Authority to have modified the eviction order passed under sub section 3 of section 11. 6. Now coming to the order of eviction passed under the ground under sub Section 3 of section 11, we are of the view that the finding entered by the learned Appellate Authority is a correct finding based on a correct appreciation of the evidence. It had become evident that Vasanthi daughter of the landlady was jobless and was dependant on the landlady for a building. That being so, the need was clearly bona fide. The tenant was unable to show that the claim under sub section 3 of Section 11 was liable to fail by virtue of any of the provisos to sub Section 3 of Section 11. Eviction order was liable to be passed under Section 11(3) and we are of the view that the finding of the learned Appellate Authority in the context of Section 11(3) are correct findings. 7. The result of the above discussion is that the RCR stands allowed to the limited extent of vacating the order R. C. R. No.160 of 2007 -10- passed by the Appellate Authority under Section 11(2)(b) and restoring the order of the Rent Control Court on the basis that contract rent is ` 250/- per mensem. We find that the contract rent agreed between the parties is ` 250/- per month. But we sustain the findings of the Rent Control Appellate Authority in the context of S. 11(3) as we do not find any illegality, irregularity or impropriety about those findings as contemplated by S. 20 of Act 2 of 1965. We confirm the order u/s 11(3) of the Act. However, taking into account the totality of the facts and circumstances attending on these cases and circumstances that the landlord had made corrections on Ext.A1 lease deed so as to enhance the contracted rent from ` 250/- to ` 650/- we are inclined to grant a reasonably long period of time for vacating the premises. We allow to the tenant one year's time, i.e. till 15/06/12 subject to the following conditions. 8. The revision petitioner shall file an affidavit within one month from today undertaking to give peaceful R. C. R. No.160 of 2007 -11- surrender of the building to the respondent within one year from this day and undertaking further to discharge the arrears of rent within one month and to pay occupational charges at the rate of ` 600/- per month with effect from 01/07/11. It is made clear that the revision petitioner will get the benefit of time granted as above only if he files the affidavit on time and honours the undertakings contained therein. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE Ul & kns/-