IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 RCRev..No. 164 of 2008() ------------------------ RCA.71/2006 of I ADDL.DISTRICT COURT, ERNAKULAM RCP.3/2004 of III ADDL.M.C.EKM (RENT CONTROL) .................... REVISION PETITIONER/APPELLANT IN RCA 84/2006 AND RESPONDENT IN RCA 71/2006/RESPONDENT IN RCP 3/2004: ----------------------------------------------------------------------------------------- H.N.AMEEN, S/O H.M. THAMPY, PROPRIETOR, M/S J.S. TEX, D/NO.XL/2719 BROADWAY, POST OFFICE LINK ROAD, ERNAKULAM. BY ADVS. MR.M.P.RAMNATH, MR.R.MURALEEKRISHNAN, MR.P.RAJESH(KOTTAKKAL) RESPONDENT(S): RESPONDENT IN RCA 84/2006 AND APPELLANT IN RCA 71/2006/PETITIONER IN RCP 3/2004: ---------------------------------------------------------------- B.AJITHKUMAR, S/O DR. P. BALAKRISHNA PILLAI, MAVUNKAL HOUSE, MANNUTHY P.O., THRISSUR REPRESENTED BY P.A HOLDER, DR. P. BALAKRISHNA PILLAI. BY ADVS. MR.SUNIL NAIR PALAKKAT, MR.K.N.ABHILASH, SMT.LEELA.R THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 18/03/2009 ALONG WITH RCR NO. 168 OF 2008, THE COURT ON 06/04/2009 PASSED THE FOLLOWING: Kss C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ R.C.R NOS: 164 & 168 OF 2008 ----------------------------------------------------------------------------------- Dated this the 6th April, 2009. O R D E R SURENDRA MOHAN, J. Both these revision petitions relate to the same shop room. The parties are also the same. Therefore both these revisions are considered together. R.C.R.164/2008 2. The revision petitioner is the tenant of the petition schedule shop room bearing corporation door No: XL/2719 on the ground floor of a multi storied commercial building by the side of the Post Office Link Road, Ernakulam. The respondent is the landlord of the shop room, represented by his father and power of attorney holder. The respondent/landlord filed RCP 3/04 before the Rent Control Court, Ernakulam for getting vacant possession of the schedule shop room on the grounds of bonafide need and subletting, set out in Sections 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act 1965, hereinafter referred to as the 'Act'. The Rent Control Court allowed the landlord's petition finding that there was sub lease but, negatived the claim of RCR 164 & 168/2008 2 bonafide need under Section 11(3) of the Act. The order of the Rent Control Court was challenged by the landlord in RCA 71/2006 and by the tenant in RCA 85/2006 before the Rent Control Appellate Authority, Ernakulam. The Rent Control Appellate Authority on a re-appraisal of the entire evidence found that the finding of the Rent Control Court against the landlord on the question of bonafide need was unsustainable, but that the finding of sublease was justified. In the above view of the matter RCA 71/2006 filed by the landlord was allowed and RCA 84/2006 filed by the tenant was dismissed. The tenant has filed the above revision against the said judgment of the Rent Control Appellate Authority. 3. During the pendency of the rent control proceedings mentioned above, viz., RCP 3/2004, the respondent/landlord alleged that the rent in respect of the petition schedule shop room was in arrears. Therefore, a petition under Section 12 of the Act was filed by the landlord. The above Rent Control Petition and the petition under Section 12 were both filed by him on the allegation that the monthly rent in respect of the premises was Rs.2,663/- per month. Pursuant to the order of the Rent Control Court on the petition under Section 12, the tenant deposited the arrears of rent RCR 164 & 168/2008 3 and the Rent Control Petition was proceeded with on the assumption that the entire arrears of rent were paid. However, the rate of rent mentioned by the landlord was a mistake. As per the terms of the rental agreement, the landlord was entitled to claim enhancement in rent at the rate of 5% every year, after the expiry of the period of lease. The tenant had also paid enhanced rent in accordance with the above clause, for a few months before the filing of the Rent Control Petition. The rent thus paid was at the rate of Rs.2,796/- per month. However, the tenant stopped paying rent when the rent control proceedings were instituted. On noticing the above mistake the landlord filed RCP 209/2005 under Section 11(2)(b) of the Act for an order of eviction against the tenant on the ground of arrears of rent. The petition was resisted by the tenant. However, the Rent Control Court after trial found that there were arrears of rent and allowed the petition. The tenant challenged the order of the Rent Control Court by filing RCA 49/2007 before the Rent Control Appellate Authority, Ernakulam. The appellate authority has confirmed the order of the Rent Control Court by judgment dated 23.1.2008. The second Revision, R.C.R.No: 168 of 2008 is filed against the said judgment of the appellate authority. RCR 164 & 168/2008 4 4. The above proceedings arose in the following facts and circumstances. The petition schedule shop room is a single room on the ground floor of a three storied building. The revision petitioner is conducting business in the said shop room under an agreement of lease dated 1.9.2001. The lease was for a period of 22 months and has expired on 31.7.2002. The monthly rent was Rs.2,663/-. The rent control petition is filed by the landlord through his power of attorney holder who is none other than his father. According to him he was a Dean of the Faculty of Agricultural University and a retired Professor of the Kerala Agricultural University, Thrissur. He is conducting a consultancy in Agriculture in a very limited manner from a shop room on the first floor of the very same building which belongs to his wife. His wife is conducting a textile business in the said shop room. He is also conducting a photostat and typewriting business. According to him he is 64 years old, sick and is not in a position to climb the stairs to the first floor. According to him, the photostat and typewriting business would flourish if it is conducted on the ground floor. Therefore he claimed vacant possession of the shop room for his use. According to him he is dependant on his son for the shop room. His need is bonafide and genuine. RCR 164 & 168/2008 5 5. He further alleges that the respondent is not conducting any business in the shop room at present. He has sublet the premises to others in violation of the lease agreement. There are other buildings available in the locality for the tenant to shift his business. He has no other building in his possession. It is further alleged that the shop room has been transferred to strangers by the tenant without his consent. The tenant is a person who is having other businesses at Ramnath District, Tamil Nadu. An Advocate notice was issued terminating the sublease. However, the tenant has refused to vacate. 6. According to the tenant, the need alleged is neither genuine nor bonafide. The building was taken on rent on 1.9.1983 after giving an amount of Rs.40,000/- as security deposit. He is conducting business in the building and ekking out his livelihood from the income. The income from the business is his main source of livelihood. No other building is available in the locality for him to shift his business. The landlord's father is not conducting any business and the same is only a story fabricated for the above petition. According to him, he is conducting textile business in the name and style J.S.Tex from 1983 onwards. When he received the Lawyer's notice he contacted the petitioner's father who was RCR 164 & 168/2008 6 managing the affairs of the building. He told the tenant that said notice was issued only for the purpose of enhancing the rent and assured him that no further proceedings would be initiated. He denied the allegation that the building was sublet to strangers. Therefore, he prayed for the dismissal of the petition. 7. The Rent Control Petition was tried on the above pleadings. On the side of the landlord the father and power of attorney holder was examined as P.W.1 and the petitioner was examined as P.W.2. Exts.A1 to A5 documents were also marked. On the side of the tenant R.Ws.1 to 4 were examined as witnesses and Exts.B1 to B4 documents were marked. Ext.C1 commission report was marked as a court exhibit. 8. The Rent Control Court considered the rival contentions with reference to the evidence on record. The court found that there was a discrepancy between the testimonies of the landlord and his father, examined as P.Ws.1 and 2 in the case. Though it is stated in the Rent Control Petition that it is the father who wanted to start a consultancy business, the landlord as P.W.2 has stated that he was also intending to join his father in the business. On the basis of the above discrepancy, the Rent Control Court found that the parties were not clear as to what they wanted to do and hence, RCR 164 & 168/2008 7 the claim of bonafide need put forth by them was not genuine. Therefore, the claim made under Section 11(3) was rejected. However, the court found that the tenant was not entitled to the benefit of the second proviso to Section 11(3). 9. On the ground under Section 11(4)(i) the court found that, at the time of inspection of the premises by the Advocate Commissioner, one Mr. Haridas was found to be in occupation of the premises. According to the tenant, the said Haridas was only an employee of his. However, no evidence has been produced by the tenant to prove that Haridas was his employee. When he was cross-examined, the tenant admitted that he was maintaining books of accounts, which would prove payment of salary to the said Haridas. The said documents were not produced, despite his offer to produce them. The burden of establishing the jural relationship with the said person being on the tenant, it was found that the tenant had not discharged his burden. Therefore, the ground under Section 11(4)(i) was found in favour of the landlord. 10. The Appellate Authority has, while considering the appeals filed by the landlord as well as the tenant considered all the aspects of the case afresh. On a re-appraisal of the findings, the Appellate Authority has found that the discrepancy in the RCR 164 & 168/2008 8 statements made by P.Ws.1 and 2 are not of much consequence for the reason that the proof affidavit in the matter had been filed two years before the actual cross-examination. The subsequent events during the intervening time-lag was the reason for the discrepancy. The Appellate Authority found that the discrepancies were not of such a serious nature as to vitiate the claim of bonafides put forth by the landlord. Therefore the Appellate Authority has reversed the finding of the Rent Control Court on the ground under Section 11 (3). The ground under Section 11(4)(i) has been confirmed by the Appellate Authority. In the above view of the matter, the Appellate Authority has ordered eviction of the tenant. It is the said findings of the Appellate Authority that are challenged in the above revision. 11. We have heard Adv. Shri. M.P.Ramnath for the revision petitioner and Adv. Shri. Sunil Nair for the respondent. 12. According to the counsel for the revision petitioner the Rent Control Petition was filed by the father of the landlord in his capacity as the power of attorney holder of his son, at the same time claiming that the shop room was required for him to start a business. According to the counsel the father could not be considered to be a dependant of his son. According to the counsel the need of the power of attorney holder could not be characterised RCR 164 & 168/2008 9 as the need of the landlord himself. In the present case, the power of attorney holder of the landlord is none other than his father. It cannot be said that the father is not dependent on his son because what is contemplated under Section 11 (3) is not the financial or physical dependency but something else. Every father is dependant upon his son for various things in life, both tangible and intangible. Emotional dependency is one such factor. A father in his old age is certainly depending on his son, sometimes for his financial as well as physical needs. Therefore, it cannot be said that a father cannot be a dependant of his son. At any rate, in the present case the father is depending on his son for the shop room in question. Therefore, the authorities below were right in accepting the claim of bonafide need put forth by the landlord. 13. With respect to the ground under Section 11(4)(i) it is contended by the counsel for the revision petitioner that the landlord has not pointed out any specific person to whom the shop room has been sublet. According to the landlord a number of persons are seen doing business in the shop room, which is not sufficient to prove the ground under Section 11(4)(i). As has already been noticed, the landlord has pointed out the presence of Haridas in the shop room. His presence has been reported by the RCR 164 & 168/2008 10 Advocate Commissioner also. According to the tenant, Mr. Haridas is his employee, for which assertion, there is absolutely no evidence available. Though the tenant had offered to produce his books of accounts, they were not produced. If Mr. Haridas was actually his employee, certainly there would have been records to substantiate the said fact. The non-production of the said documents is fatal to the case of the tenant, as found by the authorities below. It has also been noted by the authorities below that the receipts for payment of licence fees, profession tax etc produced by the tenant have all been brought into existence after issuance of the lawyer's notice. Therefore, they lacked credibility. The finding regarding sublease is concurrent and there is nothing on record to warrant a conclusion that the said finding is wrong. In view of the above, it is found that the findings of the authorities below are perfectly justified in the facts and circumstances of the case that they they do not call for any interference at the hands of this Court under Section 20 of the Act. RCR 168 of 2008 14. The above rent control revision is against the concurrent findings of the rent control court in RCP 209/2005 and that of the Rent Control Appellate Authority, Ernakulam in RCA 49/2007. The RCR 164 & 168/2008 11 Rent Control Petition was filed by the respondent/landlord seeking an order of eviction against the tenant on the ground of arrears of rent. As already noticed, according to the landlord the rent agreed was Rs.2663/- per month which was subject to a 5% increase per year in the case of continuance of the lease beyond the contractual period. The building was taken on rent on 1.9.2001 for a period of 11 months and the lease period has expired. Therefore, the landlord claimed that he was entitled to recover rent at the rate of Rs.2796/- per month with effect from September 2002. The above position was accepted by the tenant also and he had paid rent at the said rate from September 2002 till December 2003. While so, when the landlord filed RCP 3/2004 against the tenant, on the ground of bonafide need, he stopped paying rent. Therefore, the landlord filed I.A.4599/2004 under Section 12 of the Act. However, by mistake the landlord showed the rate of rent as Rs.2663/- per month in the said petition. Taking advantage of the said mistake the tenant paid the arrears of rent up to June 2004 at the old rate. Thereafter no payment was made by the tenant. According to the landlord, an amount of Rs.67,104 was due from the tenant out of which an amount of Rs.21,304/- had already been paid and the balance outstanding was Rs.45,800/-. Though a notice was issued RCR 164 & 168/2008 12 demanding payment of the arrears of rent, a reply notice was issued raising untenable contentions. Since the arrears were not paid the Rent Control Petition was filed. 15. The Rent Control Petition was contested by the tenant. According to him on expiry of the agreement, the landlord had allowed him to continue in occupation of the room on condition that he paid an additional amount of Rs.133/- per month towards rent advance, till a fresh lease agreement was executed. Therefore he had paid the amount of Rs.2796/-. He had not paid the same as enhanced rent. According to the tenant there is no stipulation in the rent agreement for enhancement of rent by 5% every year as alleged by the landlord. 16. The Rent Control Petition was tried on the above pleadings. The evidence in the case consists of oral testimony of petitioner as P.W.1 and Exts.A1 to A4 documents. The respondent did not adduce any evidence. 17. Though the lease deed executed among the parties was produced, the same was not marked due to insufficiency of stamp duty paid. Though the landlord was called upon to pay the stamp duty, he did not pay the same. Ext.A1 is the bank pass book of the landlord which shows that the tenant, Proprietor of J.S.Tex had RCR 164 & 168/2008 13 been paying rent at the rate of Rs.2663/- per month into the landlord's account up to 10.8.2002. From 10.10.2002 onwards, the amount credited is Rs.2,796/- every month, upto December 2003. On the basis of the above documents, the Rent Control Court has found that the tenant had actually paid rent at the enhanced rate till the filing of RCP 3/2004. The case put forward by the tenant that the enhanced amount was paid by adding an amount of Rs.133/- every month towards advance is clearly an after thought. He had no such case when he issued Ext.A3 reply notice to the landlord. Further, the tenant did not adduce any evidence from his side to prove the above fact. He did not even care to mount the witness box to swear to his case. Therefore, it was found that the rent was remaining in arrears and eviction has been ordered under Section 11(2)(b). The order of the Rent Control Court has also been confirmed by the Rent Control Appellate Authority in RCA 49/2007. 18. We have gone through the records of the case. It is to be noticed that the case of the tenant is too artificial to lend credence. It cannot be a coincidence that the amount of Rs.133/- which has been admittedly paid in excess by the tenant from September 2002 till December 2003 represents the 5% increase stipulated in the rental agreement. The explanation offered by the tenant cannot be RCR 164 & 168/2008 14 believed for the reason that the tenant had no obligation to make any such enhanced payment. One fails to understand why a payment was made towards advance, that too, only for a few months. The authorities below have rightly rejected the above case of the tenant. It is also to be noticed that the tenant has not chosen to adduce any evidence in support of his case. He has not even cared to mount the witness box to swear to his case. Therefore, the authorities below were justified in rejecting the case of the revision petitioner and finding that there are arrears of rent due to the landlord. We do not find any infirmity with the concurrent findings of the authorities below. In view of the above, both the revisions fail and are accordingly dismissed. No costs. C.N. RAMACHANDRAN NAIR Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: