IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 RCRev..No. 168 of 2009(A) ------------------------------ RCA.2/2008 of RENT CONTROL APPELLATE AUTHORITY, MAVELIKKARA RCP.1/2007 of RENT CONTROL COURT,HARIPAD .................... REVISION PETITIONER/RESPONDENT/PETITIONER -------------------------------------------------------- BALAKRISHNA PILLAI, AGED 64 YEARS, S/O.VELAYUDHA PANICKER, LAITHALAYAM, KARUVATTA VADAKKUM MURI, KARUVATTA. BY ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL) RESPONDENT(S): APPELLANT/RESPONDENT ------------------------------------------------- K.M.MAJEED, AGED 55 YEARS, S/O.K.K.MUHAMMED, 'FOUSIYA', VETTUVENI MURI, PALLIPPAD VILLAGE. ADV. SRI.S.SHANAVAS KHAN FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ----------------------------------- R.C.R.No.168 OF 2009 ----------------------------------- Dated this the 3rd day of December, 2010 O R D E R ~~~~~~~ Pius C. Kuriakose, J. Under challenge in this revision filed by the landlord under Section 20 of Act 2 of 1965 is the judgment of the Rent Control Appellate Authority declining the eviction which was sought for on the ground under Sub section 3 of Section 11. The need projected in the RCP was that he needs the building occupied by the respondent, a senior member of the Haripad Bar, for the purpose of starting a DTP centre. The bonafides of the need was disputed contending that the RCP is instituted as a ruse for eviction as the tenant had refused to abide by the demand of the landlord for enhancement of the rent by Rs.200/- over the existing rate of Rs.500/-. Though the respondent is a lawyer by profession he also claimed the protection of the 2nd proviso to sub-section 3 of Section 11. The Rent Control Court enquired into the matter. In the enquiry, the evidence consisted of Exts.A1 to A4 and the oral evidence of PW1, the landlord and R.C.R.No.168/2009 2 that of CPW1, the tenant lawyer. The Rent Control Court on evaluating the evidence came to the conclusion that the need was bonafide. As regards the contention that the tenant had paid a sum of Rs.50,000/- to the landlord at the time of the entrustment. It was found that in the absence of any convincing evidence from the side of the tenant, the above contention cannot be accepted. Accordingly, order of eviction was passed under Section 11(3). 2. The learned Appellate Authority would consider an appeal preferred by the tenant and interfere with the finding of the Rent Control Court that the need is bonafide. The learned Appellate Authority would very severely criticise the landlord for having instituted the petition for eviction under Section 11(2)(b) without issuing any statutory notice. The learned Appellate Authority would highlight that the word “bonafide” is not used by the landlord when he states about his need in the Rent Control Petition. The learned authority would further notice that on a previous occasion two Rent Control Petitions had been instituted against the tenant by the landlord and those Rent R.C.R.No.168/2009 3 Control Petitions had been compromised between the parties. According to the Rent Control Court, the landlord is habitually harassing his lawyer tenant who is a senior member of the Harippad Bar. On the basis of such finding and particularly on the finding that there is no proper pleading regarding the bonafides of the need, the learned Appellate Authority would reverse the finding of the Rent Control Court and vacate the order of eviction passed by that court and dismiss the RCP. In this revision under Section 20 various grounds have been raised assailing the judgment of the Appellate Authority. 3. Sri. Gerorge Varghese, learned counsel for the revision petitioner, addressed very strenuous arguments before us on the basis of various grounds. The learned counsel submitted that the learned Appellate Authority was too technical in concluding that the Rent Control Petition is liable to fail for want of proper pleading. The ground under section 11(3) was specifically invoked. In paragraph 4 of the Rent Control Petition, it is clearly averred by the landlord that it is his need to conduct business of his own for the welfare of his family. In paragraph R.C.R.No.168/2009 4 No.4 it was specifically averred that the decision to conduct DTP centre was taken with bonafides. 4. It is also averred by him in the Rent Control Petition itself that the only income which he who was previously employed in Gulf is presently having is the rental income which he derives from the building let out by him and that such income is not enough to support himself and his family. He has averred that his need is to start the business of DTP Centre and that he has already acquired necessary equipments for the same, namely a computer and a printer. He has also averred that he has the money to start the business and also that, that the petition schedule building is suitable and convenient for commencing the proposed business. No prejudice has been caused to the respondent due to any insufficiency in the pleadings of the landlord. The respondent contended that the need projected by the landlord is not bona fide. He who is an Advocate went to the extent of contending that he is entitled to the protection of the second proviso to sub Section 3 of Section 11 forgetting that the noble profession of law cannot be equated to a mere trade or R.C.R.No.168/2009 5 business. It is true that on a previous occasion a rent control petition has been instituted for evicting the respondent and that petition was compromised between the parties on the understanding that the respondent will surrender the building upon expiry of the period prescribed by the agreement which was brought into existence pursuant to the compromise. The question is whether the need projected in the present RCP is bona fide ? That question has to be answered in favour of the landlord. The learned counsel for the respondent would oppose all the submissions of the learned counsel for the petitioner. He reminded us of the contours of the present jurisdiction under Section 20 and submitted that under that jurisdiction there is no justification for interference with the judgment of the Appellate Authority. 5. We have anxiously considered the rival submissions addressed at the Bar. We have gone through the pleadings raised by the parties, copies of which were furnished to us by the learned counsel for the petitioner. We have scanned the judgment of the Appellate Authority as well as the order of the R.C.R.No.168/2009 6 Rent Control Court which was interfered with by the learned Appellate Authority. The Rent Control Petition was instituted invoking the ground of arrears of rent and bona fide need for own occupation. As for the ground of arrears of rent, it is seen that the rent alleged to be in arrears was discharged by the respondent/tenant during the pendency of the proceedings and hence, the landlord did not insist on the court passing order of eviction on that ground. Before us also there was no plea from the side of the landlord for passage of an eviction order under Section 11(2)(b). But we do notice that this is a case where the respondent/tenant, a senior member of the Haripad Bar had defaulted payment of rent. The question which arises for decision by us in this revision is only whether the learned Appellate Authority was justified in vacating the order of eviction passed by the Rent Control Court under Section 11(3). 6. Having considered the arguments addressed and having re-appraised the evidence as well as the pleadings raised by the parties, we are of the view that the above question is to be answered in favour of the landlord. Bona fides is a state of mind R.C.R.No.168/2009 7 regarding which evidence will be mostly oral and circumstantial. In the instant case, PW1/the landlord gave oral evidence which inspired the Rent Control Court which had the advantage of seeing him and recording his evidence. His evidence was that he was employed in a Gulf country previously and at the moment apart from the rental income which he derives from the rooms let out by him, he has no other income. When a person who was gainfully employed in Gulf comes forward with a case that for a decent living the rental income which he is deriving from the buildings let out by him is not sufficient, to our mind, in the absence of any oblique motives the landlords case can be accepted as bona fide. Bona fide need does not mean absolutely need. It means nothing more than a reasonable need not actuated by any oblique motives. The only oblique motive seen attributed is the motive of letting out the building after securing eviction to some other tenant on a higher rent. To support the above contention, it is pointed out by the tenant that the landlord has picked and chosen the building occupied by him for eviction. The landlord gave an explanation as to why he is seeking eviction of the building possessed by the respondent. According R.C.R.No.168/2009 8 to the landlord, among the various buildings belonging to him (all of which are in possession of tenants) the petition schedule building will be ideally suited for the proposed business. The learned Appellate Authority also has not stated that the landlord's explanation is not convincing. 7. The reason most prominently highlighted by the learned Appellate Authority for non-suiting the revision petitioner is that the word “bona fide” is not stated in the Rent Control Petition. It is unfortunate that the learned Appellate Authority forgot that in Rent Control Proceedings meticulous adherence to the Rules of pleadings is not to be insisted upon. The question to be considered is whether any prejudice has been caused to either party due to insufficiency in the pleadings of his rival. In the instant case, the very pleadings quoted by the learned Appellate Authority in paragraph 14 of its judgment shows that the landlord had pleaded that the need projected by him is bona fide. At any rate, it is apparent that no prejudice has been caused to the tenant by any insufficiency in the pleadings of the landlord as the tenant has specifically contended that the need is not bona R.C.R.No.168/2009 9 fide. 8. Another reason stated by the learned Appellate Authority to hold that the need is not bona fide is that apart from stating orally that the landlord has purchased a computer and a printer for the purpose of starting the proposed DTP centre from a friend of his, the landlord has not examined that friend for proving the purchase. According to us, the approach of the learned Appellate Authority was quite pedantic. The tenant does not have a case that the landlord does not have the financial ability to commence the proposed business. On going through the evidence of the landlord, we do not find any successful cross examination on the landlord's version of having purchased the printer and the computer for the purpose of starting the business. The ultimate finding of the learned Appellate Authority that the RCP is instituted by the landlord for harassing a senior citizen and senior member of the Harippad Bar is also not supported by acceptable legal evidence. In short, in our view the learned Appellate Authority ought not have interfered with the finding of the Rent Control Court that the need projected by the R.C.R.No.168/2009 10 landlord was bona fide. 9. Coming to the question whether the tenant is entitled for the protection of the second proviso to sub Section 3 of Section 11, it is very clear to our mind that the activity which the tenant is carrying on in the petition schedule premises is not trade or business as envisaged by the second proviso to sub Section 3 of Section 11. It is needless to mention that the respondent will not be entitled for the protection of the second proviso to sub Section 3 of Section 11. The judgment of the Rent Control Appellate Authority will have to be interfered with and order of eviction passed. 10. However, considering the earnest request of the learned counsel for the respondent to grant a long period to the tenant for surrendering the premises and his further submission that there is a likelihood of the parties coming to a compromise of the issue we are inclined to issue directions in that regard subject to certain conditions. R.C.R.No.168/2009 11 11. The result of the above discussion is therefore as follows:- The RCR will stand allowed. The judgment of the Rent Control Appellate Authority is set aside and the order of the Rent Control Court is restored. The tenant is given one years' time from today (till 3rd December, 2011) to surrender the premises. The execution court is directed to keep proceedings for delivery in abeyance for a period of one year from today subject to the following conditions:- 12. The respondent shall file an affidavit before the execution court or the Rent Control Court, as the case may be, within three weeks from today undertaking to give peaceful surrender of the petition schedule building on or before 03/12/11 and undertaking further to pay occupational charges to the landlord at the rate of Rs.1,000/- per mensem with effect from 01/01/2011. The respondent will be entitled for the benefit of time granted as above only if the affidavit as directed above is filed on time and the undertakings contained therein are honoured. We also direct the execution court to explore the R.C.R.No.168/2009 12 possibilities of a settlement between the parties before giving delivery warrant to the Amin. Delivery warrant will be issued only if it is seen that a settlement is not possible. PIUS C. KURIAKOSE JUDGE P. S. GOPINATHAN JUDGE Ps & kns/-